Military courts expire today

ISLAMABAD: The federal government is not extending the jurisdiction, expiring on Saturday, of military courts to try civilian terrorists, Attorney General of Pakistan Ashtar Ausaf Ali Khan told The News on Friday.

“The cases that were being referred to these forums would now be tried by the existing Anti-Terrorism Courts (ATCs),” he said in a telephonic conversation. “The number of ATCs may be increased considering the workload.”

The sundown clause of 21st Amendment had provided that the domain of military courts to try ‘jet black’ civilian terrorists would expire after two years, meaning that their power will automatically come to end on the expiry of this timeline.

Among others, the principal reasons for not extending the authority of military courts for trial of civilian terrorists are the absence of political consensus, phenomenal decline in terrorist incidents owing to effective operations by law enforcement agencies, especially the armed forces in the tribal areas, and strong opposition of the legal community to such mode of dispensation of justice that runs counter to the normal system of criminal justice.

The government firmly believed that it would not be able to force through parliament an extension of this part of the 21st Amendment to continuously allow the military courts to try civilians due to strong opposition by its parliamentary parties. The government doesn’t have a two-thirds majority in both the parliamentary chambers that is a prerequisite for the passage of a constitutional amendment. It can manage such a tally in the National Assembly but can’t in the opposition-dominated Senate.

The government also felt that it was not in a position to persuade and prevail upon all the parliamentary parties to support the new amendment, so that there is a universal consensus on the important legislation.

Its own great ally, the Jamiat Ulema-e-Islam-Fazl (JUI-F), has publicly campaigned against this extension. Maulana Fazlur Rehman has repeatedly articulated his staunch opposition in the recent weeks.

Back in 2014, this role for the military courts was necessary in view of the frightening wave of terrorism amid bone-chilling terrorist attack on the Army Public School in Peshawar on December 16 that year. It was concluded by all the civil and military stakeholders that quick punishments must be given to hardcore terrorists.

But even at the time almost all the political parties had reluctantly agreed to this mode of justice dispensation for a specific period. The military courts being part of the National Action Plan (NAP) were meant to provide an extraordinary solution for an extraordinary problem. However, even the federal government had described this authority of the military courts as a bitter pill. It was envisaged by the political leadership that the criminal justice system would be overhauled in these two years.

The most powerful operations in the tribal areas and across Pakistan over the past two years have broken the back of terrorists, bringing peace to Pakistan and removing the perennial panic and fear in the people at large. This encouraged the government to do away with the power of the military courts.

From the day one, the lawyers’ community rejected this provision and pointed out that such trials were not transparent in which the accused were not given the due right of defence; that the proceedings are held in-camera; and that the convicts have no right of appeal in the superior judiciary.

In the last two years, the military courts have awarded capital punishment to a large number of terrorists. Many of them have been sent to the gallows while some have challenged their sentences in superior courts where their appeals are pending disposal. On the expiry of the sunset clause, all the cases of hardened terrorists and militants will be referred to the ATCs.

During the functioning of the military courts, it was the federal government that used to decide as to which cases were to be referred to them. In close collaboration with the security apparatus, the interior ministry was playing the key role in this connection. The provincial apex committees had also been forwarding their recommendations to the effect. The ministry always closely scrutinised these cases before deciding to forward them to the military courts.