As the country strives to trudge through the circumstances generated by the pitiless killings of innocent kids in Peshawar, the demand for a stringent action plan to eradicate extremism is increasing manifold.
So to devise a strategy, the saner political and military brains – with puckered brows and crevices on forehead – came together to carve out something meaningful- the twenty points National Action Plan, a panacea to all the ills. Though the National Action Plan embeds twenty points, the whole debate is swirling around the idea of military courts. Most legal experts and major opposition political parties, the PTI, the PPP and the MQM, have shown their reservations about the establishment of military courts; since the idea does not find consonance with the constitution of 1973.
The judiciary has struck down the establishment of military courts two times to ensure that the constitution of 1973 does not have room for it. First, the special courts headed by the military officers were established in April 1977 to try civilians. But these were declared illegal by the Lahore High Court in the famous Muhammad Arbi case PLD 1977 Lah:846.
Second, Nawaz Sharif during his second tenure as the Prime Minister of Pakistan allowed the establishment of military courts in Sindh because of the worsening security situation through Ordinance No. XII of 1998. But the nine member Supreme Court bench declared these courts unconstitutional in the Sheikh LiaquatHussain case on February 17, 1999. So much so that the Supreme Court laid down the directions to refer the pending terrorism related cases to the Anti Terrorism Courts (ATCs) which were formed in 1997. To expunge the issue of the unnecessarily prolonged criminal trials, the apex court also directed the ATCs to deliver the verdicts within seven days of the petitions filed.
A tangential lesson from history is that the efforts to establish military courts both in 1977 and 1988 were followed by military coups.
Another question is what would be the jurisdictional capacity of ATCs in the presence of military courts. Which criminal cases would be referred to ATCs and which to military courts? In short, wouldn’t it be tantamount to running the two parallel systems of prosecutions where one of the two – essentially the civilian judicial system – will become ineffective?
The formation of the special military courts did not go smooth in history. Like army operations in the city of Karachi, it too earned a bad name for the army because the accused and his kin thought they had not had fair trial and also deprived of the right to appeal to higher judiciaries. Verdicts given by military courts could not be challenged in any High Court or Supreme Court. Perhaps the elements of dissatisfaction penetrated so deep that the three army men got assassinated next day after the military courts in Sindh awarded the death sentence to a convict.
Notwithstanding all these stumbling blocks, the Prime Minister Nawaz Sharif looks determined to go for the military courts, come hell or high water. He is making efforts, delivering speeches at various fora, convincing the reluctant stakeholders and dispelling their concerns in order to produce a unanimous spirit to establish the military courts. To dissipate the swelling fears about these special courts, he also emphasizes that only the terrorism related cases will be referred to these special courts.
Chief of Army Staff (COAS)General Raheel Sharif, too, observed these concerns of the parties in the APC. So he came forward to clarify that the proposed military courts would take the cases approved by the federal government, and only “jet black terrorists” who have committed heinous crimes would be tried by the special trial courts.
But there stands a hard fact making faces to the civilian judicial set-ups. The fact is that despite the guidelines issued by the Supreme Court to dispense with the cases within seven days, the Anti Terrorism Courts have not been able to meet the criterion. Moreover, protection of evidence and witness has also been a problem. There was many a case where the witnesses were gunned down and the judges blasted. That is why the witnesses and judges, too, are afraid to execute the affairs of fair prosecutions. Resultant factor is that the justice is delayed and maneuvered.
This incompetent delay on the part of our civilian judiciary goes to the favour of crime and the criminal. Ridiculously, the terrorist is exonerated, and he again gets busy doing the same with impunity which once brought him behind harmless bars.
Given these factors failing to bring the terrorists under the noose of law, there arises a need to introduce a system that can dispense with the cases of anti-state terrorists within stipulated time with no escape gateway for these “jet black terrorists”. Though military courts in 1998 operated for just one and a half months,they created great fear amongst hardcore gangsters.
Extraordinary steps are needed to resolve unusual crises. If the executive stands for the military courts, it must remove blocks, devise ways and seek guidance from constitutional history. There must be some way if there is a collective will.
One way is to reincorporate articles 212-A and 212-B into the constitution.
Article 212-A dealt with the establishment of military courts or tribunals, and was used during Zia ulHaq’s martial law but was later omitted. While the article 212-B, entitled ‘Establishment of Special Courts Special Courts for trial of heinous offences’, was introduced into the constitution through the 12th Amendment of 1991. This article was only to remain in force for a period of three years from the time of promulgation.
One possibility is to touch upon the article 245 which says that armed forces of Pakistan, under the directions of the federal government, can be called to defend against external aggression or threat of war. If this article is to be amended, the mention of establishment of special trial courts under the supervision of army must be made in the provision.
A petition has also been filed with the Supreme Court requesting to reconsider its 1999 verdict in the Sheikh LiaquatHussain case, which declared the military courts unconstitutional.
All these options are open if the military courts have to be established, but the fate of these courts hangs in the balance because of rising concerns of the executive and the judiciary. Amidst this uncertain situation, the Ministry of Law has issued notification to form three new special courts under the controversial Pakistan Protection Act 2014 to conduct immediate hearing of terrorism cases.
This uncertainty and confusion, devoid of unanimity, is perilous for the state of affairs in Pakistan. The Prime Minister Nawaz Sharif has reasonably tried to allay the impressions that military courts are not going to be politicized. Whatever has to be done, we must do, but with a message of unity to these barbarians who did not flinch from spraying bullets at our children.

The writer is a lecturer at Punjab Group of Colleges, Lahore.