Military Courts vs the Legal System

[Phenomenal]

Pakistan announced plans to set up special military courts to counter terrorism as a new anti-terrorism strategy in the aftermath of the Pakistani Taliban school massacre that killed 150 people, including children.

Extraordinary circumstances require extraordinary measures, military courts are widely felt to be the only viable option for stemming the sadistic tide of terrorism which has swept Pakistan.

Critics opined that military courts or reinstating the death penalty were cosmetic measures that would be insufficient to improve the legal process and the police as an efficient organisation in the long run.
These critics feared that these steps would hugely strengthen the role of the military in the country and weaken democracy, they were also unsure whether there would be any civilian oversight or media access.
These fears could be considered seriously if Pakistan were in a normal situation, the country is at war and a major army operation is going on since months to root out terrorist proxies and mercenaries.
Only the army can crush them effectively so that civilians breathe a sigh of relief and the country is saved from this threat.


Pakistani superior courts are strangely hesitant in the speedy resolution of terrorism cases.
Every process takes painstakingly long and even when complete, the criminals are not punished and at times not even sentenced.
The judiciary was not always like this, there have been numerous venerable judges that left noble examples of justice and intellect.
Judiciary has now been politicised due to excessive social elite inter-action and luxuries, it has become compromised as an institution.
Controversies and politics have almost destroyed the judiciary, one of the most honourable pillars of state.
Judicial commissions need to investigate how they can remedy these ineffectualities.
Judges never used to meet politicians or businessmen/tycoons socially or had friends outside legal circles to prevent any outside influence on their judicial decisions.

Surprisingly, in the last decade some judges became media figures and recieved too much publicity, public access and social mingling diminished their ability to deliver pure justice.
Suo motu powers and contempt of court notices were frequently used to control the narrative at a time when criticism was mounting.
Sometimes the judiciary also got accused of meddling in politics for pure personal aggrandisement.

In short, the judiciary has failed to deliver and now the institution has to do some soul-searching and revamp itself according to time-tested judicial traditions.
Judiciary can withstand the pressure of politicians and tycoons only when it stops attending their social gatherings.
Much more dedication and honesty is required to deliver courageous judgements for tackling terrorism.

Some judges have indicated displeasure over military courts encroaching in their domain but they should understand the need of the hour.
Military courts are the best option for the government to hold speedy trials of terrorists and those involved in heinous crimes, where the criminal meets his end within the week.
The cancer of urban warfare and terrorism has to be dealt with on a fast-track basis.
The nation is at war and the army has severely damaged their terrorist infrastructure, the incidence of suicide attacks etc has gone down by 80%, but now attacks that do happen are on a war-scale, such as the Wagah border attack, Karachi airport attack and the Peshawar attack.
Terrorists have stooped to a new low, even in war civilians are not attacked and children are not targets.
In the Peshawar attack, the TTP aim was to decimate as many children as possible with brutality.
Lady teachers were burnt alive as they tried to save their pupils.

Do such savages deserve mercy or a humane approach?


Thousands of TTP convicts are sentenced to death yet in jails since years, terrorism has to be dealt with an iron hand by promulgating special laws now.
Some people say that executing death row inmates isnt going to destroy the TTP, s ideology, but do mercenaries have an ideology and are they individuals really worth saving, do we care about their ideology?
They are planning jailbreaks all the time and whenever they are successful in escaping they strengthen the terrorist network.
Some of this death row population are masterminds of these sadistic suicide groups.
The TTP has sympathisers who want to stop the executions but there is no reason to be lenient with terrorists or their approvers anymore.

Certain segments of society do not understand the urgency of the matter, times have changed and the public wants to see action and results, not mere words.
The establishment of military courts would be in accordance with the articles of the constitution and would not be in conflict with the Constitution of Pakistan.

A few different options were discussed by the civil and military leadership to get the proposal approved by parliamentarians.
The government proposed the creation of military courts under Article 256, putting it in the first schedule.

Article 256: No private organisation capable of functioning as military organisation shall be formed and such organisation shall be illegal.
The legal experts suggest that the execution of Article 256 does not violate fundamental rights just like execution of Article 6, which covers high treason and Article 204, which covers contempt of the court, Article 256 does not have the framework to prosecute or execute the accused.
It was suggested that military courts be established under the framework of Article 256 with protection in the first schedule of the Constitution.
There were some minor technicalities in the proposed bill.
The first schedule exempts certain types of laws from invoking fundamental rights under Article 8 (1) and (2) of the Constitution.
The civil and military leadership were trying to develop a political consensus on the establishment of courts through a constitutional amendment.
Some political parties asked the government not to amend the constitution for the special courts, and instead to try terrorists within existing laws.

The provision for Special Courts is already there in the constitution:

1[212B. Establishment of Special Courts for trial of heinous offences.-(1) In Order to ensure speedy trial of cases of persons accused of such of the heinous offences specified by law as are referred to them by the Federal Government, or an authority or person authorised by it, in view of their being gruesome, brutal and sensational in character or shocking to public morality, the Federal Government may by law constitute as many Special Courts as it may consider necessary.

The law and justice ministry has suggested that the government could establish more special courts headed by High Court judges under Pakistan Protection Act (PPA), 2014 instead of amending the constitution for speedy courts manned by army officers.
The government has already formed five special courts under PPA 2014 which do not seem to make much difference in this prevailing situation.
Political consensus was lacking even at this crucial juncture when the whole nation is in shock after the massacre of schoolchildren.

Finally it was decided that amendments would be brought about in the Army Act to sanction military courts.
This bill would be tabled in the next parliamentary session.
The Army Act of 1952 will give wide-ranging powers to the Army to court-martial civilians.
Under the amended act, the Army could try civilians on charges ranging from terrorism, treason, sedition and attack on army personnel to giving statements conducive to public mischief.
The Army Act, even unamended has a provision to hold the court martial of civilians but only when at least one of the accused belongs to the armed forces.
The proposed amendment only needs to be made in Section 2 (1-d) of the Pakistan Army Act, 1952, by adding some more offences of the Pakistan Penal Code (PPC) and allowing the military courts to convict the civilians and award sentence.
The duration of such courts would be at least 2 years, but this can only be confirmed after a parliament session this month.

The judicial and legal system can run unhindered in parallel, dealing with civil and some criminal cases.
Another viable option can also be the proclamation of emergency to deal with the present circumstances.

232. Proclamation of emergency on account of war, internal disturbance, etc.—(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency 1[ : ]

The situation is not in the control of the provincial governments for sure.
Drastic measures are required to solve the present crisis, if military courts prove insufficient, an emergency would be the last course of action.

 

[VCheng]

While there are many legal avenues via which military courts can be established, the real dangers are long term in allowing the Army to establish parallel structures that enable it to perform duties that are the responsibility of other branches of government. Such arrangements will only hasten the atrophy of the rest while building up the Army only. We know that such an imbalance is not good for the country overall.

 

[Kompromat]

 

[VCheng]

As long as establishing the military courts is carried out in accordance with the Constitution with due and legal processes adopted ..........

 

[OTTOMAN]

View attachment 180809

if ever existed, those listed elements were not even invited to the APC!
The people who raised objections were Zardari and Imran Khan, whereas Nawaz Sharif was worried by backlash from Judiciary and lawyers, rather than any one listed above.

 

[Phenomenal]

While there are many legal avenues via which military courts can be established, the real dangers are long term in allowing the Army to establish parallel structures that enable it to perform duties that are the responsibility of other branches of government. Such arrangements will only hasten the atrophy of the rest while building up the Army only. We know that such an imbalance is not good for the country overall.

The judiciary is not delivering any more, do we have any other option but military courts, even if for just two years.
If not, then TTP will be running around unhindered, or rather blowing themselves up whenever plus jailbreaks.

 

[Kompromat]

The judiciary is not delivering any more, do we have any other option but military courts, even if for just two years.
If not, then TTP will be running around unhindered, or rather blowing themselves up whenever plus jailbreaks.

Not if them and their collaborators are treated as 'enemy combatant' in the military courts and aptly punished.

 

[Phenomenal]

Not if them and their collaborators are treated as 'enemy combatant' in the military courts and aptly punished.

Absolutely, military courts are the solution in the short term, perhaps terrorism categories of cases can be permanently referred to military courts in the long run.
I was astonished to see the stance of @batulrajpoot Dawn anchor last night on the subject. Dawn is the new Geo.
We need strict media laws, she kept on mentioning the 'human rights' of terrorists and saying army should be restricted to being defenders.
Our media is a branch of TTP in Western packaging.

 

[Kompromat]

Absolutely, military courts are the solution in the short term, perhaps terrorism categories of cases can be permanently referred to military courts in the long run.
I was astonished to see the stance of @batulrajpoot Dawn anchor last night on the subject. Dawn is the new Geo.
We need strict media laws, she kept on mentioning the 'human rights' of terrorists and saying army should be restricted to being defenders.
Our media is a branch of TTP in Western packaging.

All of these media outlets have fat checks coming in from the enemy powers.

 

[tarrar]

Pakistan needs Military courts because corrupt & incompetent courts are not delivering at all, they are scared of rented terrorists & even corrupt politicians are scared of rented terrorists. They (politicians, judges & lawyers) all fear for their & their families lives.

 

[Green Arrow]

Military courts are needed to speed up the trail process. We are in the middle of the disaster and have to take some bold steps.

 

[VCheng]

The judiciary is not delivering any more, do we have any other option but military courts, even if for just two years.
If not, then TTP will be running around unhindered, or rather blowing themselves up whenever plus jailbreaks.

Tis a slippery slope. The proper solution for the failing judiciary is to build it up, not create a parallel system, though time-limited. Once this is tried out, the tendency to pass on ever more authority to the Army to supplant failing organs of government will be too much to resist, no matter how justifiable. The Army can not and should not attempt to do it all.

 

[syedali73]

In the presence of current corrupt political setup, Army courts would yield nothing especially when every case would be scrutinized by the corrupt politicians before being referred to the military courts. Systems with divided authority never work. The solution is not a parallel judicial system but to declare war-like state in the country under the article 245, which will then result in the suspension of some of the so-called 'fundamental rights' hence facilitate prosecution process.

As soon as the proposed amendment gets passed by the senate, it will be challenged in the Supreme Court and an endless legal feud will ensue. We have to understand that these bastard politicians are playing with the military and they want to bring the military and supreme court to head-on collision while enjoying the tussle between the two. Why the hell COAS not talking to the CJ?

 

[Phenomenal]

Tis a slippery slope. The proper solution for the failing judiciary is to build it up, not create a parallel system, though time-limited. Once this is tried out, the tendency to pass on ever more authority to the Army to supplant failing organs of government will be too much to resist, no matter how justifiable. The Army can not and should not attempt to do it all.

That sounds quite unreal.
We repair the judiciary (which is actually quite easy, have new non political, honest lot) which can take years.
In the meantime, let the the Talibs have a party, dont u think its unfair to the army officers who are expected to sacrifice their lives for a country where Talibs cannot be punished.

 

[VCheng]

That sounds quite unreal.
We repair the judiciary (which is actually quite easy, have new non political, honest lot) which can take years.
In the meantime, let the the Talibs have a party, dont u think its unfair to the army officers who are expected to sacrifice their lives for a country where Talibs cannot be punished.

What may sound unreal now will gradually become real if allowed to happen. The Army is already a commercial entity unto itself, and having its own parallel systems in other areas such as justice, over the long run, will merely reinforce the impression that the extremists are already peddling - that it is an occupying force rather than a defending one.

============================

An article worth pondering over:

OK, goodbye - Newspaper - DAWN.COM

OK, goodbye
Cyril Almeid

They want you to believe this is a reaction to Peshawar. But they’ve wanted this for a long time: military courts. It wasn’t possible before. Too ugly, too difficult. Then Peshawar happened.

Peshawar was not sui generis, an atrocity that changed all the rules. Peshawar was the logical culmination of a long, persistent struggle.

It began somewhere in the darkness of the late 2000s. The game of cat and mouse between the military and the anti-Pak militants had begun to morph.

No longer confined to Fata, it had spread to the cities and Pakistan proper. Even in Fata, the nature of the fight had begun to change, from small, localised operations to full-scale war.

What to do about the men captured alive? Sometimes, you wanted to capture them alive: they provided valuable intelligence. Other times, you had no choice but to capture them alive, to take prisoners in the dozens and hundreds.

For years, the problem had been small enough to not cause much consternation. An irritant, as it were. Some were disposed of, no questions asked. Others were handed over to the courts, eventually released and then picked up again. An ugly cycle that created resentment on all sides, but still manageable enough.

Swat, South Waziristan and Iftikhar Chaudhry changed all of that. In Swat, they were picked up in the thousands. There were packed into rooms, buildings, anywhere with a lock and a key and a guard to stand watch. Too many to stay at the margins.

The army wasn’t willing to let them go — the victory in Swat too important, the fight too bitter to forget. But feed them into the system and most would likely walk. It wasn’t the courts’ fault.

The system and the rules hadn’t caught up to the fact a war was being fought. From South Waziristan, they spilled out into the cities, travelling to faraway Karachi, turbocharging the militant threat there and everywhere, forcing the system to capture more and more, leaving in its wake darker and darker tales.

It all eventually got too much. For Iftikhar Chaudhry, anyway. What the hell is going on, the crusading CJ asked. Bring us all these people, Chaudhry demanded. What are you doing to them, the Supreme Court all but yelled.

Think missing persons. They became a thing because of Chaudhry and his court. People started to ask questions. The excesses began to be talked about. The spillover into Balochistan began to be debated. It started to become uncomfortable.

Think the Adiala 11. That wretched lot, accused by the army of some of the most audacious attacks, set free by the courts and then scooped up from outside the gates of Adiala.

No one remembered the Adiala 11. Except the court. The army refused to budge. The court pushed harder. Eventually, the broken, distended bodies began to turn up. Then, the horrifying spectacle in the court itself, barely recognisable humans brought in front of collapsing relatives. The public was repulsed. Surely, not in our names. It was hard to tell who the monster was, who the victim.

It all became too much. Swat and South Waziristan had already set the wheels in motion. Ideas were canvassed. Opinions were sought. We need a system to make these guys pay, the boys insisted.

Slowly, they began to get their system. You’ve heard of it in recent years. Strange names. Actions in Aid of Civil Power, Fata, Pata. Anti-Terrorism Amendment Ordinance, VII, VIII. Fair Trial Act. POPO. Amended POPO. POPO that became POPA, some say PPA. Article 245 invoked.

It was all legislative and administrative. All done by the civilians. All engineered by the boys.

Sometimes, it was presented as a favour: if you want us to do this, then these are the tools we need. Other times, it was postulated as a necessity: the problem is growing, we can’t go on like this, do this and this so that we can do what’s needed.

Always, it edged us closer to a hermetically closed system. Plucked from the battlefield or a safe house in a ghetto somewhere, kept in secrecy and done to whatever is necessary. Then, marched to either a cell or an execution chamber, depending on how relevant you are, how much repentance you’ve expressed and how lenient the system wants to be.

Think of it as a stone-crushing factory. Truck pulls up, dumps a bunch of boulders onto a conveyor belt. Sorry, you can’t ask if they’re boulders or if they need to be crushed. We know what we’re doing. Let us do our job.

The boulders bump along the conveyor belt, a few pulled off on occasion by someone or the other. Sorry, we needed that one. No, you can’t ask us why. We know what we’re doing. Let us do our job. Occasionally, a boulder is returned to the belt.

Eventually, the surviving boulders arrive at the crushing site. They stay in there a while. All that emerges are neatly packed bags with powdered stone.Nope, you can’t ask us what went on in there. No, you may not ask how they were selected. We know what we’re doing. Let us do our job. Trust us. OK, goodbye.

And then, the neatly packed bags of powdered stone are loaded onto trucks and driven away. That’s what a hermetically sealed system looks like, militarily, administratively, legally. That’s what they’ve wanted and, now, with military courts, that’s what they’ve got.

Peshawar didn’t invent this; Peshawar gave them the excuse.

We know what we’re doing. Let us do our job. Trust us. OK, goodbye.

The writer is a member of staff.

cyril.a@gmail.com

Twitter: @cyalm

Published in Dawn, January 4th, 2015