Revisiting the decision to set up special military courts in 2014

Sabir Shah
Wednesday, Feb 01, 2023

LAHORE: Following the brazen attack on a Peshawar mosque on Monday, calls for harmony and national unity have once again echoed in country’s legislative houses.

The last time we all heard such calls and voices was more than eight years ago when six cold-blooded foreign terrorists had massacred 149 people, including 132 innocent kids, at Peshawar’s Army Public School on December 16, 2014. Research shows that just a week after the Army Public School tragedy, all Pakistani political parties had unanimously decided to set up special military courts to be presided over by officers donning the khaki uniform.

This decision flashed headlines on December 24, 2014. Imran Khan had called off his 126-day long protest in Islamabad and Prime Minister of the time, Nawaz Sharif, had convened a Multi-Party Conference in Peshawar, besides hailing the decision of the Pakistan Tehreek-e-Insaaf (PTI) supremo. Former President and leader of Pakistan People’s Party, Asif Zardari dubbed the tragedy as a dark day in the history of this country.

On January 7, 2015, the 21st Constitutional Amendment permitting military courts to prosecute terrorism suspects for a period of two years was finally signed into law. However, Jamaat-e-Islami and Maulana Fazlur Rehman’s political entity, the JUI-F, had abstained from voting in favour of the proposed military courts. The 21st Amendment had justified the use of military courts as a means to permanently wipe out and eradicate terrorists from their roots in Pakistan. The-then Pakistani Premier, Nawaz Sharif, had enthusiastically remarked that the establishment of military courts was a much-needed antidote to overcome 60 years of unrest.

On January 7th and on 9th 2015, two petitions were filed challenging the establishment of military courts. A three-member bench, headed by Chief Justice Nasir-ul-Mulk, was formed to hear the petitions from January 28 onwards. On April 2, 2015, the-then Chief of Army Staff, General Raheel Sharif, had ratified the death sentence awarded by military courts to six Tehreek-i-Taliban Pakistan militants and life-imprisonment to one.

The decision had evoked a strong reaction from legal experts and human rights activists. Another petition seeking a halt to the implementation of death sentences awarded by military courts was also filed by late Asma Jehangir, on behalf of the Supreme Court Bar Association to stop the implementation of death sentences awarded by military courts. Later 17-judge Full Court took up challenges pertaining to the 21st Constitutional Amendment.

Asma Jehangir had contended that if the convicted militants were sentenced to death before the Supreme Court could dispose the case challenging the establishment of military courts, justice would be compromised. The petitioner had stated: “It is, therefore, respectfully prayed that this court be pleased to pass an ad interim order staying execution of the persons sentenced to death by the military courts under the jurisdiction extended to it by the Pakistan Army (Amendment) Act 2015, till final disposal of its petition.” Asma Jehangir had further argued that the protection against retrospective punishment had not been extended to the accused, and asked whether they were tortured for the purpose of extracting evidence.

The SC granted in line with the wishes of the Supreme Court Bar Association. On this occasion, Chief Justice Nasir-ul-Mulk had viewed: “The execution of military courts’ death sentences, those which have already been awarded and those which will be awarded, is suspended.” However, the Chief Arbiter had ruled that those convicted by military courts could appeal against their sentences. The case hearing was adjourned till April 22, 2015, following a news that the wife of a judge in the Full Court had suffered from a heart attack. On June 24, 2015, during the hearing of the 21st Amendment, the Attorney General of Pakistan, Salman Butt, had informed the court that in 2014, about 85 per cent of cases were outstanding in anti-terrorism courts.

On June 26, 2015, a 17-member Supreme Court Full Bench had reserved its decision regarding the nearly three dozen petitions challenging the formation of military courts and the issues pertaining to the procedure of the appointment of judges and the women reserved seats under the 18th Constitutional Amendment. On December 2, 2015, as the “BBC News” had reported, Pakistan had hanged four men linked to the Army Public School tragedy.

It is imperative to recall that in February 1999, during the second tenure of Prime Minister Nawaz Sharif, the Supreme Court of Pakistan had declared the setting up of military courts as unconstitutional and illegal. A nine-judge Supreme Court bench, headed by the then Chief Justice Ajmal Mian, had declared the establishment of military courts in Sindh totally illegal, while hearing the Sheikh Liaquat Hussain Case of 1999. Peeking into history reveals that an Ordinance Number XII of 1998 was promulgated by the government of Nawaz Sharif in the wake of persisting violence and terrorism that had gripped Karachi. In 1999, the Supreme Court judges at the helm had also ordered transferring all terrorism cases to the Anti-Terrorism Courts set up under the Anti-Terrorism Act of 1997. The Apex Court had then directed the special courts to give decisions within seven days.

It was primarily due to this particular reason that in 2014-15, the national political leadership of the time had decided to amend the national charter to provide a Constitutional cover to the military courts.