The President of Pakistan on March 31 gave assent to two bills passed recently by the Parliament reviving the military courts for trying suspects belonging to any terrorist group misusing the name of religion or sect. The two Acts – Constitution (Twenty-eighth Amendment) Act 2017 and Pakistan Army (Amendment) Act 2017 – revived the military courts since Jan 7 for further two years, but with certain changes compared to such courts in 2015-16.

Legal experts dealing with cases of military courts’ convicts believe that though much more was required to be done, certain provisions included in the recently passed law, if properly implemented, would ensure transparency in the affairs of these courts along with providing opportunity of fair trial to the accused persons. With the recent amendments certain steps have been made binding on the military courts and concerned authorities.

In past, relatives of the convicts mostly complained that they came to know about the relevant conviction through media when the Inter Services Public Relations made public these convictions through issuance of press releases. In several of the cases people had complained that their convicted relatives were “missing persons” who had remained in detention for many years before their convictions.

An expert said that the government had included some amendments in the Pakistan Army (Amendment) Bill, 2017 on the recommendations of Pakistan Peoples Party and these changes to the law would help in checking any misuse of authority.

One major facility now provided to the suspects is to engage counsel of their choice. Through the recent Act several changes have now been made in the Pakistan Army Act 1952. Section 2 (iv) (e) of the amended Army Act states: “The accused shall have the right to engage a counsel of his choice at his trial as provided for in this Act. In case the accused is unable to engage a counsel due to any reason, the convening authority at its discretion, may provide a counsel, in request of the accused, at state expenses.”

“This provision is very vital for trials by the military courts as previously most of the convicts had complained that they were not consulted and they did not know as to who their counsel was during trial. But the federal government should ensure that this provision is strictly adhered to by the military courts conducting trials of suspected militants,” said advocate Arif Jan representing several of the convicts in their petitions before the superior courts.

He pointed out that another important provision was related to the applicability of Qanun-e-Shahadat Order, 1984 (Evidence Act) to the trials by the military courts.

He added that with the applicability of law of evidence the trial courts had now to strictly follow the conditions applicable to witnesses in a criminal trial.

Another important inclusion is that of sub-clause (d) of sub-section (iv) which provides that the accused will be provided grounds of arrest within 24 hours of arrest as provided for in this Act.

The military courts were initially set up under the Constitution (Twenty-first Amendment) Act, 2015 for trying terrorists attached with militant outfits using the name of religion or sect. The said law was enacted on Jan 7, 2015 for a period of two years.

In the light of the said constitutional amendment, the Pakistan Army (Amendment) Act, 2015 was also enacted the same day, which also provided wide- ranging offences in which the military courts were empowered to conduct trials, but it was limited to only those suspected terrorists claiming or were known to belong to any terrorist group or organisation using the name of religion or a sect.

According to ISPR, the military courts, which had functioned for two years till Jan 6, 2017, had convicted 274 hardcore militants of which 161 were sentenced to death whereas 113 others were awarded prison terms, mostly life imprisonment.

Several of the convicts or their relatives had challenged their conviction before high courts and finally before the Supreme Court. The Supreme Court on Aug 29, 2016, dismissed appeals of 16 convicts of military courts. Review petitions of those petitioners have now been pending before the court.

Most of those appeals had originated out of judgments of Peshawar High Court, which had so far dismissed several petitions filed against convictions by the military courts. Presently, around 40 other petitions have been pending before the high court.

Several of the points raised by counsels for the petitioners before the apex court were common in nature. They had contended that the convicts in these cases were subjected to a secret trial without access to legal assistance, and having been deprived of the right to be represented by a legal practitioner of their own choice in violation of rights so guaranteed by Articles 10 and 10A of the Constitution. They had stated that the procedure adopted denuded the proceedings of the requirements of a “fair trial” and “due process”.

It was contended that the convicts were deprived of their rights to produce evidence in their defence or to cross-examine the prosecution witnesses. It was further added that sufficient time to prepare the defence was not provided in terms of Rule 23 of the Pakistan Army Act Rules, 1954.

While rejecting all the 16 Leave to Appeal Petitions, the Supreme Court bench ruled about each of the case that the examination of the record reveals that the Field General Court Martial (FGCM) was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice.

The bench had ruled that it appears from the record that the convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM.

The bench had ruled that no illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to.

“Compared to the 2015 amendments made to the Army Act the present amendments are better as far as conducting a fair trial is concerned, provided that the law is followed strictly,” said Arid Jan.

Published in Dawn, April 3rd, 2017