Baqir Sajjad Syed & Malik Asad
Islamabad, 7 January 2017. The controversial special powers given to the army to establish tribunals for trying civilians on terrorism charges are set to end after two years as the sunset clause contained in the legislation covering trials by military courts takes effect on Saturday (today).
The special powers were given to the army under the 21st constitutional amendment and the Pakistan Army (Amendment) Bill, 2015, enacted by parliament on Jan 6, 2015, in the aftermath of the Army Public School tragedy.
The two houses of parliament had on that occasion voted unanimously for the legislation despite fears among the lawmakers that the tribunals they were authorising would not be able to ensure due process to the suspects and might undermine democracy.
The legislation contained a sunset clause of two years from the date of enactment.
There was no formal statement either from the government or the military announcing the end of the extraordinary powers for trial of civilians by the military.
An interior ministry source said terrorism cases in future would be taken up by antiterrorism courts that were mandated to conduct expeditious trials.
Another source confided that the interior ministry had made a “belated and half-hearted” attempt to earn a renewal of the law providing for the military courts, but that couldn’t happen.
Another key antiterrorism law, Protection of Pakistan Act, also expired last year without any succeeding arrangement.
Political parties and legal experts criticised the government for not undertaking the needed legal reforms to address the reasons that had necessitated the setting up of military courts.
“There was a reason why the 21st amendment had a sunset clause in it; so that the criminal justice system could be reformed in this time. Unfortunately, the government hasn’t moved an inch in this regard,” said Pakistan Tehreek-i-Insaf leader Shireen Mazari.
Legal expert and former law minister Ahmer Bilal Soofi said: “The military courts achieved their objective partly in terms of giving sentences to people, but their real purpose was to act as an incentive to upgrade the existing Anti-Terrorism Act.
It was an inbuilt legislative inducement. But that did not happen. The long-term objective was not achieved.”
International Commission of Jurists’ Asia Director Sam Zarifi said: “The lapse of the jurisdiction of military courts over civilians is a step in the right direction, but unsurprisingly there is no sign of the promised reforms to strengthen the ordinary criminal justice system to effectively handle terrorism-related cases.”
Military courts began trials in February 2015. The first convictions were announced two months later in April and the last ones were pronounced on Dec 28, 2016.
The courts, which had been given 275 cases, during their two-year tenure sentenced 161 terrorists to death, whereas another 116 were given varying jail terms, mostly life sentences. Only 12 convicts have been executed so far.
The establishment of the military courts was initially challenged in the Supreme Court. The petitioners had contended that the 21st amendment was an expression of no-confidence on prevailing judiciary, a violation of basic human rights and against the basic structure of the Constitution.
The petitions were dismissed by the apex court. Subsequently, about 27 convicts challenged their sentencing by the military courts alleging that they did not receive a fair trial, as guaranteed by Article 10A of the Constitution, as they were neither given copies of the verdict nor were they afforded the opportunity to engage counsel to defend themselves.
“The statistics on military courts speak for themselves, something like over 90 per cent conviction rate, and the fact that they lacked transparency makes due process even more unlikely,” Sara Belal, Executive Director of Justice Project Pakistan, said.
The trials resulted in convictions, imprisonment of and death sentences against terrorists belonging to Al Qaeda, Tehreek-i-Taliban Pakistan, Jamaatul Ahrar, Toheedwal Jihad Group, Jaish-e-Muhammad, Harkat-ul-Jehad-i-Islami, Lashkar-i-Jhangvi, Lashkar-i-Jhangvi Al-Alami, Lashkar-i-Islami, and Sipah-i-Sahaba.
Some of the well-known terrorism cases in which sentences were handed down included the Army Public School, Peshawar, massacre, Safoora bus attack, killing of activist Sabeen Mehmood, attack on journalist Raza Rumi, Bannu jailbreak, Parade Lane Mosque, Rawalpindi, bombing, killing of foreign tourists at Nanga Parbat base camp, attack on a bus carrying Shia pilgrims in Mastung, shooting down of an army helicopter in Orakzai agency, attack on a PIA aircraft in Peshawar, Marriott Hotel bombing, Karachi airport attack, sectarian murders and attacks on law enforcement personnel and their offices, polio teams and educational institutions.
Fareed Piracha, a Jamaat-i-Islami leader, whose party had abstained from the voting on the 21st amendment in parliament, felt relieved that the military courts had come to an end. “It is a good development,” he said.