Military Courts in Pakistan
Daily Times November 12, 2007
General Pervez Musharraf has amended the Army Act 1952 to grant the army powers to try civilians in military courts. The old act only had provisions enabling the army to try civilians if they were accessory to any criminal act committed by an employee of the army. Now the amendment enlarges this power to include all the Penal Code crimes that can be interpreted as being against the "security of Pakistan" — a term that is so loose that it can be taken to mean whatever the regime wants it to mean. Sedition, treason, keeping unlicensed weapons and attack on the army personnel, etc, can now be tried by military officers. Even more alarmingly, there is a new provision covering the "giving of statements conducive to public mischief" — another term that can be applied whimsically. While an appeal would still lie with the higher judiciary, these newly empowered military courts are aimed at enabling the government to avoid civil adjudication and its more stringent requirements of evidence and due process of law.
There are many stated and unstated reasons for expanding the ambit of the Army Act. Before the amendment, cases relating to security and terrorism were tried in special anti-terrorism courts. But predictably such courts proved ineffective in dealing with the rising graph of anti-state crimes: their sentences were either reduced or thrown out on appeal at the higher judicial level for lack of evidence. There was also a persistent objection from legal circles to the setting up of special courts when they were instituted in the 1990s, the main one being that it is the process of law that needed improvement, and that its bifurcation could not overcome such phenomena as the badly investigated and badly prepared cases by the prosecution. In many cases, terrorists punished by the special courts were let off by the higher judiciary on appeal simply because the police had botched the case during investigation. The case in point is the Supreme Court verdict in favour of the terrorists in the case of Lal Masjid in Islamabad, and this could be one of the causes why the Army Act has been beefed up. Two of the judges in the bench that let off 61 Lal Masjid extremists and terrorists are back in the Supreme Court after the PCO — Justice Nawaz Abbasi and Justice Faqir Muhammad Khokhar — but the problem was lack of evidence and not miscarriage of justice.
The ordinance that amends the Army Act makes the new provisions retroactive to 2003. This means the Ordinance will cover the hundreds of cases of "disappearance" that the Supreme Court of Chief Justice Iftikhar Muhammad Chaudhry was inquiring into, suo motu, to the embarrassment of the government. The new Supreme Court will no longer be able to proceed after it has been informed that the military authorities had taken cognisance of the crimes allegedly committed by the people picked up by the intelligence agencies. The habeas corpus provisions could now be avoided by simply notifying the arrests under the Army Act. The backdated law will take the cases of "disappearance" off the rostrum.
The attorney general of Pakistan, Malik Muhammad Qayyum, says the law was in the works for some time. It had in fact been attempted in the past but unsuccessfully. This time the "much-needed" provisions aimed at "state security" have finally been achieved. The Lahore High court had thrown out a similar beefing up of the Army Act in 1977. Then, as now, the government was faced with widespread civil disturbances and could not put them down with the remedies available under normal law. Indeed, under the martial law of General Zia, military officers were appointed judges in the provinces and tough punishments were handed down against protesters with summary evidence that would not stand up in courts functioning under normal law.
The courts martial under the Army Act have their own rules. People picked up under the dragnet of the amended Army Act will not be able to demand the registration of an FIR with the police. Once picked up, it will become more difficult to find out where the "disappeared" person has gone. While there is a provision for defence of the arrested person once he has been put on trial, the army officer acting as judge has his own rules to follow. And judging by the military courts' performance under General Zia when the punishments were summary and tough, we may expect that conditions under which the military courts of General Musharraf will function will not be much different from the military courts of General Zia.
In fact, considering that there are abstractions like "defence of Pakistan" in the amended Army Act, we may expect a proliferation of military courts in the country. Almost anyone can be picked up and accused of treason or sedition or terrorism and sent before a military officer posing as a judge. When General Musharraf began his rule he refrained from associating himself with the legacy of the earlier martial laws under Generals Ayub and Zia. Now we could be entering the phase of a full-dress military government even with a civilian façade.
This is totally unacceptable. It is a perversion of justice. In our intolerant and autocratic culture, in particular, such military courts will lend themselves to great abuse of civil, human and fundamental rights long after General Musharraf has gone. For every one real extremist or terrorist picked up, the "agencies" will lock up and torture many more innocent civilians. The country is asking for an end to the Emergency and the release of political prisoners and here is General Musharraf turning the knife in. There are reports that as many as 18 people have already been charged with "treason" — some among them like Mir Hasil Bizenjo and Yusuf Mastikhan who are Baloch sub-nationalists — for protesting the PCO and Emergency. Will the military now shift them from the judicial lock up and make them "disappear"? There are other leaders and their followers in jail under lesser laws than treason. Already the government is damaging its image by keeping them confined. One can say that instead of defusing the situation the government is loading the dice against itself by enhancing the profile of its opponents. The lawyers that have been released may have suffered from hunger and fatigue but they will not take it as punishment; they will simply be more emotionally charged in their reactions. The arrests under treason in Karachi will prove particularly dangerous as they will touch the already raw nerve of Baloch nationalists.
These laws are abominable. General Musharraf has come a long way from when he was a defender of the media and civil rights to when he is the chief prosecutor of them in the country. If and when the transfer of power takes place, the political parties must not forget to remove these from the statute books.
Also See:Asma Asails Changes in Army Act: Dawn