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Civil and Military judicial systems: Need for bridging the gap

Civil and Military judicial systems: Need for bridging the gap


Military judicial systems, the World over, are known for delivering swift, speedy and credible justice during extraordinary times. Especially so when the routine of the run judicial system is unable to deliver justice due to any of the accepted multiple genuine reasons. Post 9/11 setting threw up such extraordinary environment when circumstances had rendered the normal judicial channels ineffective, particularly when it came to punishing hard core terrorists. This situation prevailed for about fifteen years and none of the terrorist was awarded meaningful penalty for heinous crimes, it was often observed that those arrested on these accounts were promptly granted bail and were repeatedly caught committing same crimes again and again. Under these conditions National Action Plan was formulated to counter terrorism and military courts were setup for a limited time. These courts served the purpose and award of meaningful punishments to had core terrorists helped in quelling the waves of terrorism promptly.

In an eye catching decision, on October 18, the Peshawar High Court (PHC) set aside the punishments awarded to 74 convicts by military courts in various cases of terrorism. Accepting their appeals against the military courts’ verdicts, a two-member bench overturned the death and life sentences that were handed to the convicts. The court overturned their sentences after concluding that the charges against the accused had not been proven beyond a shadow of a doubt. “Through a short order, the bench ordered that the convicts be released. Nearly 50 of them had been sentenced to death, while the rest were serving jail terms”.

A division bench issued the short order after hearing in-camera arguments for three days. Earlier, this court had suspended the convictions awarded by the military courts in these cases. There were a total of 74 appeals on cause list against the military court’s convictions and majority of them were of death sentences. In addition to it there were also cases of life imprisonment and sentence of up to 20 years jail. According to the short order, “All the appeals against death sentences, life imprisonment and other sentences of 14 years to 20 years, against the decisions of military courts, are allowed. The reasons will be recorded in the detailed judgement.” In majority of the cases, the Chief of Army Staff had confirmed the death sentence of the convicts, and for that the proceeding had gone through multi-tier reviews and scrutiny.

Apparently, PHC verdict is based not on evidence but other alleged drawbacks in the process as pointed out by defence lawyers who claimed that their clients were not given opportunity of a fair trial. Most of the convicts were charged in terrorism cases in 2009, 2010 and 2011. Argument by defence lawyers was that convicts’ trial without FIRs and retrospective effect under the Army Act for the trial was unlawful and without jurisdiction. Technicalities aside, the fact remains that these 74 accused were charged of grave crimes and they took lives of many innocent people. Their acquittal amounts to relicensing them to resume their killing spree. Under these circumstances, how could any sane person expect improvement in the security environment on a sustainable basis?

One has to wait to see court’s reasoning till the detailed judgement is issued. A major criticism of the military justice system is that the entire process lacks openness and convicts are denied a right to fair trial. However, the Supreme Court has upheld the legality of trial of civilians before military courts. State is obliged to take the toughest measures to protect the people from terrorist attacks. Notwithstanding, military courts are the least preferred response to the threat. Setting up of military courts is a stopgap arrangement, as the existing anti-terrorism courts are not fully geared to deal with cases involving militant combatants captured during military operations in the tribal areas or those participating in terrorist activities on the mainland. The rate of conviction of even hard-core criminals and terrorists by civil courts has all along been negligible as the system weaknesses are exploited by unscrupulous lawyers to the advantage of criminals. A flawed system of investigation and lack of evidence that is difficult to obtain in cases of terrorism related case culminated in many hardened terrorists getting away without conviction. The threat to the security of the judges and investigators and their families was also the reason for the extremely low conviction rate in militancy-related cases.

Military courts were established for two years and during this period civil judiciary was expected to fix its weaknesses and be able to re-takeover the task. However, it failed to do so, so the military courts were asked to carry out the task for another two years; this period is to end in January 2019. However, civilian courts are still no better than what they were in January 2015. It is yet another testimony of the lack of faith in the country’s criminal justice system and the sheer ineptness of political system to reform it. Reasons that led to setting up of military courts continue to persist. And it goes to the credit of swift action by military courts alongside military operations that terrorism is on its fag end.

Military courts have a history of administering swift and credible justice since ancient times. Prosecution by these courts is based on same Criminal Code Procedures followed by civil courts; likewise, military courts abide by same Law of Evidence. Appropriately qualified law officers handle the court proceedings. Each decision by a military court goes through multi-tier vetting and review procedure. Traditionally military courts rely more on substantial evidence and are lesser bound by trivialities arising out of legal technicalities and suffocating procedural restrictions.

Certainly Army’s Judge Advocate General’s team will have to answer many question, as to why pointed out technical gaps and procedural voids were not plugged-in during the trial proceedings. While at the same time, PHC bench needs to account for basing such decision mainly on technicalities, while mainly ignoring the substance matter,  and that too in case of heinous crimes. There are many rungs between capital punishments and outright acquittal and one does not have to go berserk to jump straight from capital punishment to acquittal option without preferring to choose from whole assortment of lower degree punishments.

Under the circumstances remanding the case for retrial should have been a win-win situation for all sides. Hopefully, a worthwhile solution would be found out. Army needs to undertake capacity enhancement of its JAG branch to avoid recurrences. And PHC should avoid outright choking of one of the parliament approved and constitutionally established judicial sub-system.

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Rear View: Netaji Bose, Nehru and anti Colonial Struggle

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