On Nov 11, 2015, the National Assembly approved an amendment to the Pakistan Army Act (PAA), 1952. This amendment provides legal cover to arrests already made by law-enforcement agencies, including the Army.
The Bill amends Section 2 of the PAA, allowing military courts to hold in-camera trials and conceal the names of court officials “for the protection of witnesses, president, members, prosecutors, defending officers and other persons concerned in court proceedings”.
The amendment states that:
“Any person arrested, detained or held in custody by the armed forces, civil armed forces or law-enforcement agencies and kept under arrest, custody or detention before the coming into force of the Pakistan Army (Amendment) Act, 2015, shall be deemed to have been arrested or detained pursuant to the provision of this Act.”
The controversial provision has already been in force as law, as a part of a presidential ordinance, since February of this year.
The Ordinance followed the 21st Amendment in the Constitution, which provides for military court trial of terrorism suspects for a period of two years, as was decided in an all-party conference convened by the PM in the wake of a terrorist attack on a Peshawar school.
The validation of the military court by the Supreme Court, on August 5, 2015, was the last nail in the coffin for human rights in Pakistan.
The military courts have been given unprecedented power to try any civilian on suspicion of militancy and terrorism. The practice of military courts pronouncing death penalty against unnamed accused by unnamed judges sitting at undisclosed locations, and without any mention of charges, case of the prosecution, or the defence plea, and by disallowing independent observers, violates requirements of modicum procedural safeguards.
Interestingly, on Nov 26, 2009, an attempt was purportedly made by the then PPP government to set up military courts. The proposed bill, which sought trial of terrorists involved in attacks on defence installations and security forces in military courts, was put off, following serious concerns raised jointly by the members of the committee belonging to the PML-N and PML-Q. Now, it is the same PML that is in power. And, it is the same PML that has been the forerunner in introducing the Bill and amending the Constitution to pave way for military courts.
No matter what party is in power, the Ministry of Defence has been consistent. In 2009 too, the Ministry of Defence defended the draft bill by citing loopholes that help exonerate those involved in attacking security forces and important defence installations.
The respective UN agencies have been concerned about the re-establishment of military tribunals in Pakistan.
In a statement issued on April 21, 2015, in response to the Pakistan Supreme Court’s earlier decision to suspend death sentences awarded by military courts in Pakistan, a group of UN Experts, which included Special Rapporteurs and Chair-Rapporteurs, expressed strong concern about the possibilities of injustice:
“The administration of justice through military tribunals raises serious questions, particularly in terms of access to justice, independence and impartiality of the court, and respect for the fair trial rights of the accused…. Military tribunals should have jurisdiction only over military personnel who commit military offences or breaches of military discipline, and then only when those offences or breaches do not amount to serious human rights violations, and they should never have the power to impose the death penalty”.
The idea that courts will only operate for two years, or that they will not be involved in non-terrorism related cases, does not change the fact that a democratic government has chosen to relinquish a considerable amount of space to the military.
For the better part of its existence, the country has borne witness to a rising tide of intolerance, bigotry, militancy, and sectarian violence. Setting up of military courts as a “fast track way to justice”, sidelining the Judiciary and civilian law enforcement agencies, is hardly the way a democratic government should handle intolerance.
To date, neither the Judiciary nor the government has taken any coherent steps to address the collapsing criminal justice system.
Now, how will the State deal with terrorists once the sunset clause comes into effect? What interim measures have been taken to ensure that the country is purged of all elements that perpetuate terrorism in the country?
Those who are being and will be detained and tried by military courts are not the one most involved in fomenting violence and intolerance.
Jammat ut Dawwah (JuD) and Ahle Sunnat Wa Jammat (ASWJ) may well be banned organizations, but they continue to operate with impunity, secure in the knowledge that their particular brand of violent extremism will always be tolerated, as long as they fulfil their function as strategic assets for the State.
The policy makers on national security of Pakistan must understand that it is not through cosmetic measures, such as setting up of military courts that peace will bring into the country. For sustainable and long lasting peace, the masses must be guaranteed their fundamental rights and extremist factions must not be allowed to take root in society.