The Supreme Court of Pakistan on April 16 stayed the implementation of capital punishment recently awarded to six suspected militants by military courts established after the Parliament amended the Constitution of Pakistan and Pakistan Army Act 1952. While hearing an application filed by the Supreme Court Bar Association through advocate Asma Jehangir a bench headed by Chief Justice Nasirul Mulk ordered: “Meanwhile the execution of death sentences that have been awarded or would be awarded by the military courts is suspended.”

Soon after the bench stayed the executions, about which it was not clear when it would take place, a campaign has been launched on the social media by unknown quarters against the judiciary trying to portray that such like orders would encourage militants and terrorists. Ever since the barbaric killings of innocent students took place in the Army Public School and College on Dec 16 certain quarters have been propagating as if the root cause of militancy in Pakistan was the non-conviction and non-execution of terrorists.

The apex court will resume hearing in the case on April 22. Looking at the criticism let loose on the judiciary it is evident that the court would be under immense pressure while deciding petitions challenging the setting up of military courts.

The trials of those sentenced to death by the military courts were held in a clandestine manner with very little information available about where these trials took place; whether the convicts were tried jointly or separately; what were the specific charges against them; when they were arrested by the security agencies; for how long they had remained in the custody of security forces; what kind of evidence was available against them; etc.

On April 2 the ISPR made public the conviction of seven terrorists stating that six of them were sentenced to death whereas the seventh was sentenced to life imprisonment. The statement of the ISPR also stated that the Chief of Army Staff, General Raheel Sharif, had also confirmed these convictions.

The statement also claimed that the convicts had the right to file an appeal before the court of appeals against the ruling. It would be surprising if any court of appeal under the Army Act will overturn any of the convictions especially when these were confirmed by the COAS.

Interestingly, the names of the convicts were not made public and it was reported through sources by the print and electronic media that those who were awarded death sentence included Noor Saeed, Haider Ali, Murad Khan, Inayatullah, Israruddin and Qari Zahir. Moreover, Abbas has been sentenced to life imprisonment. It is not clear whether these convicts belong to tribal areas, Khyber Pakhtunkhwa or any other province.

Legal experts dealing with cases of terrorism believe that those who are comparing the military courts with that of regular courts or special anti-terrorism courts are either naïve on the issue or have deliberately been trying to malign the judiciary.

The ATCs and regular courts have to follow the provisions of the Code of Criminal Procedure, the Evidence Act (Qanoon-i-Shahadat) and other relevant laws and could not convict a person merely on basis of allegations. The judges conducting trials of alleged militants and terrorists are conducting trials openly with their courts known to all. There is no secrecy regarding the witnesses and the judges.

Under the CrPC the identity of a witness could not be kept secret. There is no witness protection program available due to which people are mostly hesitant to come forward and testify against a terrorist.

Contrary to that nobody knows anything about the military courts. Who are the presiding officers and members in a court martial and where and when these courts are conducting trials are always kept close guarded secrets. If the same facilities are extended to ATCs, these courts will also be in a better position to conduct trials.

Keeping in view the judicial history of the country this will not be the first time that the apex court would adjudicate on the issue of military courts. However, the difference this time is that while in past the superior judiciary had on different occasions declared the setting up of military courts as unconstitutional this time the government had given constitutional cover to it through the Constitution (21st Amendment) Act.

Furthermore, as compared to past this time the security situation in the country was alarming as in certain regions the state had lost its writ and militants were calling the shots. The supporters of military courts believe that in such like circumstances extra ordinary steps needed to be taken including the setting up of military courts.

The issue of military courts had surfaced even during the government of late Zulfikar Ali Bhutto when he had set up summary military courts after the general elections of 1977. During that time law and order had emerged as a result of agitation started by then opposition parties against alleged rigging in the polls. When the governments in Sindh and Punjab failed to control the situation those military courts were set up under Article 245 of the Constitution whereas certain amendments were also made in the Army Act 1952.

That action of the government was challenged before the Lahore and Sindh high courts. The judgments of the two high courts in those petitions are reported as Darwesh M. Arbey vs Federation of Pakistan (PLD 1980 Lahore 206) and Niaz Ahmed Khan vs Province of Sindh (PLD 1977 Karachi 604), respectively. In these judgments the courts clearly pronounced that Article 245 of the Constitution could not be invoked by a political government to rule through the armed forces.

In 1998 the then Nawaz Sharif’s government had invoked Article 245 of the Constitution for calling armed forces in aid of civil power. Similarly an ordinance was promulgated for establishing military courts.

Through the famous judgment in Sheikh Liaqat Ali Case (PLD 1999 Supreme Court 504) a full bench of the Supreme Court, headed by then chief justice Ajmal Mian, had declared as unconstitutional and illegal the setting up of military courts. The judgment clearly demonstrated that the civil authorities as well as the security forces could not act outside the parameters and limits enshrined in the Constitution. However, by the time the judgment was delivered two convicts, who were awarded death sentences by military courts, had already been executed.

Legal experts believe that judiciary has once again been passing through crucial times and has now been the centre of attraction. While the legal fraternity expects that the judiciary would sustain growing pressure and declare these military courts unconstitutional, there is also a vast majority of people who think otherwise and wants the judiciary to allow the military courts to function.

Published in Dawn, April 20th, 2015

On a mobile phone? Get the Dawn Mobile App: Apple Store | Google Play