More of the Same: Revival of Military Courts

A view of the Parliamentary Leaders addressing a Press Conference after a meeting in the Speaker of National Assembly’s Chamber on February 28, 2017 to forge consensus on revival of Military Courts

What had been dreaded has transpired; the elected Government, with the expiry of the sunset clause of the 21st Constitutional Amendment on January 07, 2017, has sought an extension in the term of the Military Courts for another two years. Major political parties have thrown their weight behind the proposal as well, including the JUI-F and the JI with the Pakistan Peoples Party, however, still hesitant on the matter.

The formation of the Military Courts came about as an ‘extraordinary measure’ in the aftermath of the APS tragedy of December 16, 2014; packaged by Government as a somewhat bitter pill that had to be swallowed for a short while not only as a way to eradicate terrorism but as a stop-gap arrangement due to inefficiencies of the legal system, hence the two-year sunset clause allowing the Government and Parliament to bring in necessary reforms to strengthen the legal system to adequately and effectively manage challenges of terrorism. Reforms in the criminal justice system within two years were also a central tenet of the National Action Plan (NAP). However, without any progress on reforming the judicial system, the proposal to re-establish military courts is tantamount to Government failure.

This highly contentious creation of a parallel system of justice was passed in the shape of 21st Constitutional Amendment by the current Parliament in January 2015. However, the Parliament, for its part, has also done precious little in the past two years on reviewing the performance of the Government on reforms in Pakistan’s criminal justice system. Although the Senate did a commendable job to produce a detailed report on the Provision of Inexpensive and Speedy Justice in the Country after detailed deliberations in its Committee of the Whole in December 2015, the Parliament on the whole did not exercise its oversight role in a befitting manner. Its Committees should have sought monthly reports from the Government on the steps taken to reform the justice system. Had the Parliament done its duty at that time, it would not be discussing again today whether or not to give two more years to the Government for the same purpose.

Due to the failure of both the Government and the Parliament, it is indeed disappointing that we find ourselves at the same cross roads again, with the same arguments being floated.

To add to the frustration, there are no real statistics or communication by the Government on the utility that Military Courts have extended in the fight against terrorism. This much is known that during their tenure, military courts tried 274 cases of terrorism and sentenced 161 terrorists to death, whereas another 116 were given varying jail terms, mostly life sentences. Out of the 161 sentenced to death, 12 have been executed till now.

According to the numbers calculated by PILDAT based on media reports which may or may not be completely accurate, convictions of around 35 militants are pending before the Peshawar High Court.¹ In addition, review petitions of at least 11 of the convicts of military courts against dismissal of their earlier appeals are also pending before the Supreme Court. Given that the Supreme Court and High Courts have carried out in-camera proceedings in this regard, it is difficult to verify the ground for the appeals.

PILDAT reiterates that the following points must be taken into consideration before making any hasty decision on the matter:

Operation Radd-ul-Fassad

The launch of Operation Radd-ul-Fassad on February 22, 2017 comes at the heels of Operation Zarb-e-Azb, launched during the tenure of former COAS, Gen. (Retd.) Raheel Sharif on June 15, 2014, which had the main aim of neutralizing the former militant stronghold of North Waziristan.

Although the launching of Operation Radd-ul-Fassad might have been in the offing for some time, its apparent catalyst was a series of terrorist attacks that rocked all four provinces of Pakistan during the first two weeks of February 2017, culminating in the attack on the popular shrine of Shahbaz Qalandar at Sehwan on February 16, 2017.

Essentially, the objectives of the Operation can be delineated as:²

Unlike Operation Zarb-e-Azb, which was only restricted to North Waziristan, the theater of Operation Radd-ul-Fassad will be the whole country.

Importantly, Pakistan Rangers (Punjab) have also been deployed for the Operation in the province, although a decision had already been taken in this regard in a meeting of the Apex Committee of the Punjab on February 19, 2017³. The suicide attack on Lahore’s Charing Cross on February 13, 2017 forms a crucial link to the deployment of Rangers in the province. Rangers have been given policing powers under the Anti Terrorism Act of 1997, which was announced in a notification issued by the Federal Ministry of Interior the same day Operation Radd-ul-Fassad was announced.⁴

It is important to note that the deployment of Rangers in a province had been construed to be an irritant for civil-military relations in Pakistan by various observers. Regardless of whether there was any truth to this or not, opposition parties such as the PPP and PTI on numerous occasions have publically demanded deployment of Rangers in the province.

PILDAT believes that the following points need to considered in this regard:

After his retirement, Gen. (Retd.) Raheel Sharif, former COAS, is in the news again amid rumours that he has accepted the proposition to lead the Saudi-led Islamic Military Alliance to Fight Terrorism (IMAFT).⁶ 

Although rumours were doing rounds in this regard since December 2016, the Federal Minister of Pakistan, Khawaja Muhammad Asif, MNA provided credence to these. While appearing on a talk show of Geo Television called Naya Pakistan on January 06, 2017, he claimed that ‘the agreement in this regard had been finalized a few days ago’. He went on to claim that ‘as you are aware that this thing was in the pipeline for quite some time and the Prime Minister was also part of the deliberations …  definitely our Government's consent must have been part of this’.⁷

Pakistan had initially found itself in the crosshairs of Middle Eastern politics as Saudi Arabia named it as part of its newly formed military alliance of Muslim countries meant to combat terrorism, apparently without first getting Pakistan’s consent. However, after initial ambiguity, the Government had confirmed its participation in the alliance, but had said that the scope of its participation would be defined after the Kingdom shared the details of the coalition it was assembling.

As media commentaries gained speed, criticizing the former COAS for becoming a part of an Alliance that may not have unanimous support of all the Muslim countries, especially Iran, and the precarious position this would place Pakistan in, the elected Government seemed to retract the publically stated position. For example, only two days later on January 08, 2017, the Prime Minister’s spokesperson, Mr. Mussadiq Malik, stated that no official proposal had been shared with the elected Government in this regard.

In addition, in what can only be termed a complete volte-face, while appearing before the Pakistan Senate on January 10, 2017, the Federal Minister for Defence stated that the Federal Government was as of yet unaware of any development regarding Gen. (Retd.) Raheel Sharif's appointment as head of the coalition. He also said it was mandatory for him, as is for every other retired army officer, to seek an NOC from the Defence Ministry before embarking on any new assignment abroad, but a No Objection Certificate had not been sought in this regard.⁸

Given that the Kingdom of Saudi Arabia has made no official communication in this regard, PILDAT regrets the casual and allusive attitude of the Defence Minister during his talk show appearance on January 06, 2017. Given that he holds such an important portfolio, he not only should have been better informed about the development, but may have also exercised caution while commenting on it.

Land Allotted to Gen. (Retd.) Raheel Sharif

The former COAS was in the news again when a news story claimed that‘Gen. (Retd.) Raheel Sharif has been allotted 868 kanals and 10 marlas of land (about 90 acres) on Bedian Road Lahore, and not just 482 kanals, through the Border Area Committee’.⁹ The News’ report went on to put an estimate of the land at around Pakistani Rs. 1.35 billion, which may appreciate to Pak Rs. 4 billion in a few years’ time.

This story set ablaze the national media, with the move hyped as an exclusive privilege extended to the former COAS. The controversy gained further ground when the ISPR issued a Press Release on January 26, 2017 stating that ‘Issue of allotment of land to Army Officers and Jawans is being debated and conjectured for last few days. It may be noted that such allotments are made through constitutional provision. Allotment to former COAS Gen. Raheel Sharif is also under same provision and through Government/Army procedures. This debate of maligning army also has the potential to create misunderstandings between state institutions thus considered detrimental to existing cohesion’.¹⁰

While it is unclear which ‘constitutional provisions’ the ISPR referred to, it goes without saying that the nation owes a lot to the members of the Armed Forces, both those martyred and retired, and arrangements should be made for them, or their families to lead comfortable lives, in case of martyrdom or post retirement. In addition, both Gen. (Retd.) Raheel Sharif and the institution he has led are held in high public regard.

While PILDAT can recognise the necessity on the part of the ISPR to set the record straight on the matter and hence issue a Press Release, the strong wording of the presser not only further instigated the controversy but its final sentence alluded to misunderstanding between the State institutions, which is vague and probably unwarranted.

PILDAT believes that for a variety of compelling reasons, including the need to keep such matters above board, there remains a crucial need for absolute constitutional, legal and procedural transparency in such matters of land allocation and other privileges. The current system of land allocation is shrouded in a cloak of opacity and will remain a source of contention and controversy, alongside rumours, unless greater transparency is instituted. There is also a need to consider another system of reward for our Army officials, both retired and martyred since land is a finite resource. Given there has already been criticism of the institution for its alleged real estate interests, both the Government and the Military require to consider other workable alternatives. While there have been proposals initiated in Pakistan Senate for re-examination of post retirement benefits, ¹¹ this may be taken up in a bipartisan manner where views of the Pakistan Military may also be incorporated.

No Meeting of the National Security Committee

One had hoped for a changed attitude on part of the Government, especially with a new COAS leading Pakistan Army, regarding institutionalized consultation at the level of the National Security Committee which the Government has formed and itself termed it as the country’s ‘principal decision-making body on matters of national security’.

Unfortunately, effective utilization of the forum continues to be elusive, with the latest meeting of the NSC taking place on April 05, 2016, nearly 11 months ago. It must be mentioned here that since its formation in August 2013, the NSC has only met for a total of 5 times, denoting the lack of seriousness regarding an institution created by the current Government itself. It is important to note that similar consultative forums in developed democracies such as the UK, meet once every week. That is how national security management is institutionalized, and its democratic oversight is ensured.

While the NSC is formed by the PML-N Government since August 2013, instead of holding and chairing NSC meetings and using the form created for the purpose to hold crucial consultations, the Prime Minister appears to prefer meeting the COAS in one-on-one meetings or in the company of his handpicked Ministers to deliberate on important national security issues. Just during January and February 2017 when the country was once again rocked by major terrorism incidents and a key decision to launch yet another military operation has been taken, Prime Minister chose to do so by chairing three meetings on security matters at the PMO with his choice of military leadership and members of the Cabinet instead of a meeting of the NSC.

Ideally, the decision to launch Operation Radd-ul-Fassad should have been taken in a meeting of the NSC and the Cabinet. However, no one knows when the decision in this regard was taken, what were the considerations that went into it, whether there is any official record of the Government holding any consultations on the matter, etc. Important questions such as what are the targets set for the operation, what is the timeline of the operation and how the Government will monitor its implementation are also unknown. The nation is still unaware of the agreed timeline, targets set and achieved and nature of success or failure of the earlier operation Zarb-e-Azb. Arguably the NSC is the principle forum where such an progress on implementation against targets can be gauged. With the continued dormancy of NSC, one gets little comfort in the civilian democratic institutions’ capacity and will to effectively oversee and manage national security issues of such proportion.

Premier-COAS Interactions

Meeting held at the Prime Minister House on February 15, 2017

In the months of January and February 2017, the Prime Minister and the COAS met for a total of 3 times:

In all three meetings, the Federal Minister for Defence was absent.

References