Following a Corps Commander Conference at the GHQ on May 15, the Director General of Inter-Services Public Relations (DGISPR) announced “a firm commitment to bringing those responsible for these heinous crimes against military installations and personnel to justice.” It was stated that relevant laws, including the Pakistan Army Act and the Official Secrets Act, would be invoked for trials.
However, the establishment of military courts has, on multiple occasions in the past, been utilized as a political tool to suppress dissent and enact vengeance against political opponents. When we delve into the history of military courts and examine the periods during which they were established, it becomes clear why there is vehement opposition to their continued existence. This opposition stems from their doubtful track record about their fairness and effectiveness, their lack of transparency and due respect for a proper legal process.
The secret trials of the Rawalpindi Conspiracy Case of 1951
The case involved 11 army officers and several civilians, including activists, writers, and leaders of the peasant movement. They were accused of conspiring to overthrow the government of Liaquat Ali Khan and the military leadership. The suspects were dissatisfied with the British dominance in the army and the increasing corruption by the elite. They were also concerned about the government's growing ties to the United States. Faiz Ahmed Faiz, a renowned poet and editor of the Pakistan Times, was also detained for supporting the conspiracy.
A special tribunal without a jury was set up in Hyderabad prison. It was the first instance of a prototype of military courts in the country. All of the proceedings were held in secret and witnesses were warned against revealing even a hint of information in public. The secrecy of this tribunal was so great that the record of the case is still inaccessible.
The defendants were denied the right to appeal. Even though the charges could not be proved against the civilians and other army officials, many faced imprisonment.
First military court (1953)
The first military court was established in Lahore to quell riots against the Ahmadiyya community, a religious minority in Pakistan. The court sentenced several people to death, including Maulana Maudoodi, the founder of the Jamaat-e-Islami party, and Maulana Abdul Sattar Niazi, the leader of the Jamiat Ulema-e-Islam party. These sentences were widely criticized and condemned, and the martial law administrator was forced to commute them to life imprisonment.
Military courts under Ayub Khan’s regime (1958)
Established in 1958 by General Ayub Khan, military courts in Pakistan were notorious for suppressing dissent and targeting political opponents. Progressive, leftist, and nationalist individuals faced execution, including Sardar Nauroz Khan and his siblings, while Khan's sentence was later commuted due to his age. Nawab Akbar Khan Bugti, who voiced support for the Baloch people, received a life imprisonment sentence. The inhabitants of East Pakistan, Sindh, and Khyber Pakhtunkhwa provinces also fell victim to the reach of military courts. These cases reflect the dark legacy of military courts and their impact on various regions and communities.
The sustained brutality of military courts under Yahya Khan (1996)
In 1969, General Yahya Khan established military courts in Pakistan, primarily targeting political opponents such as members of the Awami National Party, Pakistan People's Party, Awami League, and communists. During this period, thousands of Awami League workers faced sentences handed down by these courts. However, following the separation of East Pakistan, Justice Hamood-ur-Rehman was tasked with investigating the causes and produced a report. Justice Hamood-ur-Rehman's findings exposed the military courts' role in suppressing dissent, punishing political opponents, and violating the rule of law and human rights. Consequently, the military courts were abolished based on the recommendations of his report.
Dictatorial attempts by Zulfikar Ali Bhutto to stifle opposition (1977)
After the elections in 1977, Summary Military Courts were created by then-Prime Minister Zulfikar Ali Bhutto to restore law and order, which had been disrupted by the growing agitation of the opposition over the allegations of rigging in elections in Sindh and Punjab. By invoking Article 245, under which the civilian government can seek military assistance in governance, the government made amendments to the Army Act 1952, which further deprived defendants of appealing in the high courts. The government's initiative was challenged in the high courts of Sindh and Punjab, which declared the government's act unconstitutional.
Zia’s oppressive legacy and military courts (1979)
When General Zia-ul-Haq's reign of terror unfolded in 1979, he amended the constitution through the Second Amendment, set up military courts, and authorized trials of offenses under Martial Law Regulations, which took effect on October 16, 1979. These courts also negated the jurisdiction of high courts, and more than a hundred military courts were established. Decisions made by these courts were immune from review by civil courts.
Special courts 1991
In 1991, special courts were established in Pakistan to try civilians for terrorism-related offenses under the Twelfth Constitutional Amendment. These courts, appointed with judges lacking legal qualifications, had the power to oust the jurisdiction of civilian courts.
The special courts were a moderate version of military courts, and they were intended to ensure speedy trials.
Military courts in Sindh (1998)
In 1997, the government of the Pakistan Muslim League-Nawaz (PML-N) set up military courts in Sindh province. The PML-N government also passed an ordinance that limited appeals against special court decisions to three working days. This ordinance also ousted the jurisdiction of all other courts, including the High Courts and the Supreme Court. The Ordinance granted authority to the Chiefs of the Armed Forces and Brigadiers to establish military courts, including appellate courts. However, in 1999, the Pakistani Supreme Court deemed the establishment of military courts unconstitutional, emphasizing adherence to constitutional limits.
Military courts as a pathway to counterterrorism after the APS attack (2014-2015)
In 2015, after the Peshawar school attack, a national consensus led to the approval of a 20-point National Action Plan (NAP) by the Parliament. One significant aspect of the NAP was the creation of military courts for trying terrorism cases. The NAP also called for the reinstatement of the death penalty in terrorism cases.
In January 2015, the Pakistani Parliament passed the Twenty-First Amendment Act and the Pakistan Army (Amendment) Act. The 21st Constitutional Amendment expanded military court jurisdiction to try civilians for terrorism-related offenses, including attacks on military officials or installations, possession of explosives or firearms, terrorist activity using vehicles, causing death or serious injuries, creating terror or insecurity, threatening national security, funding terrorism, waging war against the state and attempted acts. The amendment also included a two-year sunset clause for the military courts' abolition. As military court proceedings are not public, it is challenging to assess their adherence to legal procedures and principles. While limited, the option to file a writ petition in higher courts exists to challenge jurisdiction, bad faith, or non-compliance with the law.
Peshawar High Court casts shadow on military courts (2018)
On October 18, 2018, the (PHC) overturned convictions by military courts in terrorism cases, highlighting human rights violations. The PHC ruled that the accused were denied a fair trial, as the military courts disregarded legal procedures. Proceedings relied solely on confessions, preventing the accused from presenting evidence. Confessions were identical in all cases, indicating a lack of thorough investigation. With no eyewitnesses, the military courts relied on unreliable self-testimony. The accused lacked competent legal representation, raising doubts about the credibility of the defense counsel. The military courts displayed a disregard for facts and law, acting in bad faith. This decision underscores the concerns surrounding military court proceedings and their failure to uphold fundamental rights
In addition, data shows that people accused of terrorism in Pakistan were imprisoned under a 2011 law that allows indefinite detention without charge. Some of these people had been held in custody without trial for up to six years.
The failure of military courts to uphold fundamental rights of justice
According to a report by Dawn on December 21, 2020, the Supreme Court has suspended the judgments of the high court from 2018 and 2020 in response to appeals filed by the government. The main appeals are still pending and awaiting a final decision. An ex-Lieutenant General Javed Iqbal was convicted of espionage and sentenced to 14 years in 2019, has been pardoned by the incumbent COAS Asim Munir. His unprecedented conviction raised eyebrows due to his previous high-ranking military positions. General Iqbal challenged his conviction in court, citing the improper constitution of the court martial and unfair proceedings while alleging politically motivated charges. In a separate case, a civilian, Hasan Askaree received a five-year prison sentence from a military court in 2020 for writing a critical letter to the former COAS Qamar Javed Bajwa. Human rights groups have condemned Askaree's arrest, arguing that it violated due process and infringed upon his freedom of speech.
The trial of civilians in military courts in Pakistan violates both the country's constitution and international law, International Covenant on Civil and Political Rights (ICCPR), which Pakistan has ratified. The constitution guarantees the right to a fair trial by an independent and impartial tribunal, including due process rights such as a public trial, legal representation, and the opportunity to confront witnesses. Regrettably, these rights are not consistently upheld in military court proceedings.
While the coalition government may have a golden chance to address the injustices they have themselves endured under the PTI government, seeking vengeance by targeting weak and powerless political workers does not serve Pakistan's best interests. Government ministers appear to be exaggerating allegations, portraying the attackers as highly trained mercenaries who have stolen sensitive state secrets. However, it is important to note that the demonstrators did not cause damage to critical military installations involving weapons, ammunition, or military assets.
Moreover, the DGISPR's press release emphasized the need to penalize those who violate social media rules and regulations. If the government acquiesces to this request, it risks undermining freedom of expression and eroding the minimal liberties we currently enjoy.
It is crucial to acknowledge that the events of May 9 not only resulted in property damage, but also witnessed the mistreatment of protesters by law enforcement. Reports suggest that demonstrators were subjected to violence, including being dragged, beaten, and shot at during confrontations. The fate of other detained agitators remains uncertain, as they have not been presented in court for proper legal proceedings. While the PTI claims thousands of detainees and numerous casualties, there is no official data available to substantiate these figures. The government appears more focused on political point-scoring than on seeking the truth.
Trying civilians in military courts not only violates international conventions, to which Pakistan is a signatory, but also contradicts the principles enshrined in the Constitution. The use of military courts for civilian trials undermines fundamental rights and due process, which are guaranteed by Pakistan's legal framework.
The establishment of military courts throughout history has consistently occurred in politically charged environments, creating significant doubts and speculation regarding their fairness.
In these tumultuous times, it is crucial for reason to prevail and for some semblance of sanity to be maintained. If unchecked anger and chaos take hold, it will only lead to the destruction of all. Unfortunately, we are now confronted with information from government officials suggesting that party leaders leaked sensitive information and plotted attacks on intelligence officers' residences. It appears that a series of such allegations will follow, aiming to dehumanize the detainees and rationalize the injustice being inflicted upon them, as we have witnessed in the cases of MQM and Baloch political workers.