The question of trial of civilians in Military Courts and bleeding national security

DND Thought CenterThe question of trial of civilians in Military Courts and bleeding national...

Islamabad, Pakistan: On December 12, 2023, at least 23 soldiers were martyred when terrorists rammed an explosive-laden truck into a security forces post in Khyber-Paktunkhwa’s Dera Ismail Khan district. This was the second lethal attack on forces during the next 40 days as on November 3, 2023, 14 soldiers were martyred in Gwadar district while on November 3, M.M. Alam PAF Training Base Mianwali was also attacked by terrorists but they were neutralized without any causalities from the forces side.

DI Khan suicide attack december 12 2023
DI Khan suicide attack December 12, 2023

The pattern of the latest wave of terrorism is quite clear, armed forces and military installations are the foremost targets of terrorists. In these circumstances, the Pakistan Army is facing a catch-22 situation because its strength of intelligence networking is being compromised. If intelligence agencies arrest accomplices and abettors of terrorists, they get bail from courts and then immediately disappear. If intelligence agencies pick such abettors for interrogation then civilian rights people call the action “forced disappearance” because due to the sensitivity of cases, it is technically not possible to produce the accused to courts unless the interrogation is completed and another technical reason includes disclosure of accused’s identification because this disclosure sends a message to other culprits and they either go to hideouts within cities or cross the border to Afghanistan. If intelligence agencies produce the culprits to courts, they usually get bail and then disappear if they are not rearrested within the compounds of the courts.

   

The gravity of this situation can only be understood by those who deal with such cases as reporters, people with knowledge of counterterrorism, employees of intelligence agencies, criminals, and public prosecutors. One of the remaining options for effectively running the counterterrorism is trial of cases of terrorists and criminals who attack the armed forces in Military Courts but this option has now also ceased to work because of the decision of the five-membered bench against the trial of civilians in the military courts. Although the decision was verbally announced by the Bench but Order Sheet is yet to be released and the Federation is waiting to go in appeal but it needs an Order Sheet for submitting the appeal against the decision.

It is claimed by many in Islamabad that the reason pro-PTI judges gave a decision against the trial of civilians in military courts was to safeguard PTI followers who were arrested due to their alleged involvement in attacking military installations during the May 9, 2023 mutiny.

Surprisingly, politics and personal interest have started to prevail over important laws regarding the security of the country in Pakistan, the latest example of which is the trial in military courts under the Army Act against certain civilians involved in terrorism and attacks on military installations. There is an attempt to make the hearing controversial. The decision coming from the five-member bench of the Supreme Court on October 23, 2023, on the petition filed in the Supreme Court, is surprising, according to which trial of people in military courts who are involved in terrorism and military installations or against the security of the country was illegal.

This means that now military courts can only conduct trials against army personnel. While under the Military Act of 1952 and 1967, the decisions given by the military courts against many non-military persons have been implemented in the past. In the past, all the decisions given under the Army Act in Pakistan have been recognized not only by the Supreme Court of Pakistan but also by the International Court of Justice as due process.

Unfortunately, while deciding against the trial of civilians in the military courts, the Supreme Court did not consider the reality that the Pakistan Army is the biggest obstacle against terrorism that has been going on in the country for many decades and the attack on the security of Pakistan. After this development, the fear of trial in military courts is over, and terrorists now know that they will face the weak civil court system in the country and the prolonged absence of hearings. The morale of the terrorists will be high and they will be bolder to promote terrorism in the country.

Pakistan Army has been fighting for the security of the country and nation against terrorism for two decades. In this endless war, the officers and men of the Pakistan Army have sacrificed their lives in thousands. Just take a look at the past and see that this war on terrorism had a different form. In Balochistan, the enemy was attacking in the guise of separatists. In Sindh, extortion and target killings were the norm. At the same time, Khyber Pakhtunkhwa and Punjab were the special targets of terrorists, in which suicide bombings were on the rise in addition to targeting innocent people in the name of sectarianism. Wasn’t the situation at that time such that the honorable judges of our judiciary started to panic while hearing the cases against the terrorists? because they were being threatened by suicide bombers. Amid fear, seeing the nets of barbed wire around the courts and courtrooms, it seemed like war-torn areas. One must not forget the suicide bombing in F-8 Courts in Islamabad and several such incidents also took place all over the country.

It was only the officers and soldiers of the Pakistan Army, paramilitary forces, and policemen who stood firm in front of the enemies of the country, and after the arrest of the terrorists, there was no guarantee for the security of themselves and their families because terrorists make such brave men as their prime targets and take revenge from them for arresting criminals and terrorists.

It may be remembered that the eleven-member bench of the Supreme Court in 2015 validated the trial of the civilian in the military court. After that, in 2016 and 2017, the Supreme Court approved the trial of civilians in military courts under the Military Act, then suddenly what happened? Efforts are being made to make military courts ineffective by declaring them illegal.

Including the United States, Argentina, Turkey, China, Thailand, Indonesia, Kuwait, Sri Lanka, Iran, India, Iraq, Yemen, Saudi Arabia, Jordan, and Bangladesh, there are dozens of countries where cases against attackers on military installations are heard. It is done in military courts.

None of the above countries have any threat from their neighbors as Pakistan has always from India and Afghanistan.

Now the question is that on the one hand, in politics and power struggle, every political party holds the army responsible for being out of power. But the events of May 9 have given a new color to the political tension in the country. Whether the attack of the PTI workers on the army installations due to emotions or being seduced by someone has been sacrificed for politics and personal interest. So, in the future, this process has to become an integral part of the protest. If the decision of the Supreme Court regarding the military courts is to save the people involved in the events of May 9, then its effects will be dangerous and far-reaching for the country’s security. If all these things are examined, then this question arises in the mind should personal interest be prioritized in matters of national security?

Former Chief Justice Jawad S. Khawaja has challenged the inclusion of Justice Tariq Masood in the bench responsible for hearing appeals against trials in military courts. In his application, Justice Jawad S. Khawaja has expressed reservations about Justice Masood’s stand on the applications related to the military courts. He is also demanding the removal of Justice Masood from the bench overseeing the appeals of the military court. In the past, Justice Masood in past declared petitions against military courts as inadmissible to hearing. The unfortunate reality is that in the videos circulating on social media of the May 9 attacks, Justice S. Khawaja’s family members were seen being present in the terror attack at Jinnah House so one can understand his over the situation.

There is no doubt that the role of the state administration is defined under the Constitution 1973 of the country, but when the issue is the security of the country and the nation, the responsibilities increase which should not be sacrificed for personal interest.

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