The two-year-long trial

Spotlight on the performance of the military courts between Jan 2015 and Jan 2017

The two-year-long trial

Finally, the Constitution (Twenty-Eighth Amendment) Bill, 2017 to extend the term of military courts for another two years for speedy trial of hardcore terrorists has sailed through Senate amid serious concerns of senators, both from opposition PPP, and government allies, JUI-F and PkMAP.

It took more than two months for the ruling party PML-N to address their concerns.

The opposition senators raised serious question on the government’s performance on the implementation of National Action Plan. They demanded the government to reform the existing judicial system, and ensure before the mandated term of the military courts ends, a strong and fast-track system is in place.

Now that the agreement on extension of military courts has been reached, a review of its performance between January 2015 and January 2017 is due, mostly based on the data compiled by the International Commission of Jurists.

With the execution of five terrorists on March 8, the total number of militants executed through military courts has reached 17 out of 161 who have been awarded death sentence. The remaining 144 are awaiting execution. According to the data, the military courts have convicted in total 274 hardcore terrorists since January 2015 out of which 161 were awarded death sentence. Analysis of the data shows that 58 per cent of the total convicted terrorists were awarded death penalties; around two per cent have been awarded life imprisonment whereas the details of sentences of 38 per cent convicted terrorists were not provided by the military courts.

The data further shows that 88 terrorists who have been convicted by the military courts were allegedly affiliated with Tehrik-e-Taliban Pakistan, eight with al-Qaeda, seven with Sipah-e-Sahaba, six with Toheedwal Jihad Group, four with Harkat-ul-Jihad-e-Islami, one terrorist affiliated with Tehrik-e-Taliban Swat, one with Jaish-e-Muhammad, three with Lashkar-e-Jhangvi, six with Lashkar-e-Islam, 35 members of proscribed organisations whereas identity of 115 militants have not been disclosed.

From January to November 2016, total 86 people have been executed, out of which total seven were hanged on charges of terrorism. More than 90 per cent of the executions occurred in jails of the Punjab province.

“Military trials of civilians are clear cut violation of human rights, the effects of which will continue to haunt the rule of law and due process in the country for many years to come."

From January to November 2016, total 86 people have been executed, out of which total seven were hanged on charges of terrorism. More than 90 per cent of the executions occurred in jails of the Punjab province.

Though, the militants who have been convicted by the military courts have the right to go for appeal in the high courts and Supreme Court of Pakistan. So far the apex courts have dismissed all review petitions. According to a source, at least appeals of 16 militants who were convicted by the military courts have been dismissed by the Supreme Court of Pakistan whereas dozens others are pending by the apex courts.

Senator Farhatullah Babar while talking to TNS says, "The role and performance of military courts is open to question. Military courts can never act as a deterrent against militancy and terrorism. Those who are ready to die can’t be deterred by the fear of being hanged through military courts. However, this is an alternative for holding speedy trials".

He adds that the military courts were set up for the protection of judges and witnesses, however, this could be done by introducing reforms in the existing judicial system.

Salman Akram Raja, a renowned lawyer, thinks military courts are not the permanent solution to terrorism. "We need reform in the existing civil judicial system, and there is no hope of any reform till military courts are intact".

When asked whether the dismissal of appeals by Supreme Court and high courts against the conviction awarded by military courts validates that the trials of military courts were fair, Raja comments, "one cannot comment on this issue unless the proceedings of the military courts are made public."

Reema Omer, a London-based International Commission of Justice International Legal Adviser for Pakistan, says "Military trials of civilians are clear cut violation of human rights, the effects of which will continue to haunt the rule of law and due process in the country for many years to come."

She thinks these military courts have operated with staggering lack of transparency -- "their procedures; the selection of cases to be referred to them; the location and timing of the trials; the precise charges and judgments; and in some cases, even the names of the suspects are not disclosed. Such secrecy is not just a violation of the suspects’ rights, it also calls into question the verdict delivered by military courts."

She firmly believes that instead of focusing on extending the military court’s tenure the government should ensure strengthening of criminal justice system if it is serious about handling terrorism effectively. "There is no sign of reforms to strengthen the ordinary criminal justice system to effectively handle terrorism-related cases -- an aspect of NAP that the government completely neglected. The government must not resort to more short-term, short-sighted security measures that are contrary to human rights protections."

According to the ISPR, 95 per cent of the people convicted by military courts have ‘admitted’ to their crimes. This incredibly high rate of ‘confessions’ -- especially given the complete absence of safeguards and independent monitoring -- raise serious concerns about torture and other ill-treatment. "The problem is the complete secrecy with which military courts operate, which allows them to bypass these guarantees".

If we have a look at data of total number of people who have been executed since the moratorium was ended in December 2014, total 426 people were hanged till November 2016. According to the data of Human Rights Commission of Pakistan (HRCP) which shows that from December 2014 to November 2016, only 29 out of 426 people have been executed under the Anti Terrorism Act. Vast majority of the 426 executions carried out since the moratorium was ended for the death penalty in December 2014, has been for crimes unrelated to terrorism.

The HRCP data shows that in 2014, only seven people were hanged. All of them were executed on terrorism charges. Three of them were involved in attack on General Musharraf. Dr Usman, the mastermind of GHQ attack and three other persons accused of suicide attack on Musharraf’s convoy.

Similarly, 333 people were hanged in 2015, out of which 15 were executed on charges of terrorism whereas the remaining 318 were hanged on murder charges. Three out of the 15 have been hanged on charges of attack on Musharraf. Three have been charged for highjacking PIA plane whereas four people have been hanged on charges of attack on Army Public School Peshawar.