Baba Sattar, an Islamabad lawyer, has written a damning op-ed, "Militarised justice," for The International News. Referring to the December 2016 Army Public School massacre, he observes, in part:
Our approach to criminal justice post-Peshawar is thus understandable, but not correct, morally, legally or logically. We have no empirical basis to argue that hanging people deters others from engaging in crime. The deterrence value of the state inflicting death on criminals is even more suspect in view of the nature of terror we face – which involves faith-motivated suicide attackers. The death penalty is controversial, not just due to the moral question of whether the state should ever end a human life, but because justice systems run by humans make mistakes.
The problem gets aggravated when we take away due process and fair-trial protections built into the criminal justice system to make it safe, and reverse the onus of proof by considering suspects guilty until proven innocent. The military’s court martial system isn’t designed to mete out justice to those who wrong society. Its paramount object is to maintain discipline within the army. A judge hearing a criminal matter is meant to be a neutral arbiter providing a level field to the state prosecuting the case and the suspect’s lawyer defending him.
The courts martial set up under the Army Act are hardly capable of dispensing justice to members of the armed forces, let alone suspects in a war that the army is waging against citizens-turned-terrorists. While military courts are not meant to try those who don’t belong to the military, the courts martial established under the Army Act are not even truly independent in the judicial sense due to changes introduced overtime by dictators to enable the army chief to exercise tight control over the adjudicatory process.
All decent justice systems bar repeat trials for the same offence, and so does Pakistan’s constitution. In case of a court martial under the Army Act, the sentence is required to be confirmed by the authority convening the court martial. But the convening authority can refuse to confirm the sentence and the court martial proceedings can otherwise be annulled and a retrial ordered to manufacture different results.
The Pakistan Army Act rules originally afforded a person sentenced the right to get a copy of the trial proceedings, as logic and fairness dictate. But through an amendment introduced in 1985 the army chief gave himself the authority to refuse provision of copy of proceedings if deemed “prejudicial to the safety or interests of the state”. This makes the right to appeal meaningless as the convict has no way of knowing what exactly has been held against him and why.
The GHQ has also ordered (through an administrative instruction) that once the chief or vice chief confirms a sentence, the court of appeals cannot change the verdict without first obtaining permission from the chief/vice chief. The Army Act Rules also provide that the high command can award censure to members of a court martial. Who then in his right mind would risk career progression in the zeal to do complete justice if that means producing results different from those expected?
Within this existing framework can courts martial or courts of appeal established under the Army Act be considered independent tribunals of justice? In our present scenario, we have been told that only the blackest of black cases will be sent to military courts. Which serving officer appointed as member of a court martial will, in exercise of his judicial powers, find in favour of those already declared blackest of black by his superiors on the operational side?
Motivated by fear and anger, we did what we did. One year later and almost halfway through the two-year period of military justice afforded by the 21st Amendment, let us rethink the nature of the problem we face, and the solutions that we need that are just and will work. We will need to go back and resurrect our moth-eaten criminal justice system. The sooner we start, the better.Will Pakistani parliamentarians heed this call for reform?