The establishment of military courts to try terrorists, their abettors and facilitators—-which forms the pivot of the National Action Plan against terrorism—-unanimously drawn up by the entire political leadership, the government and the military establishment seems to have become quite controversial. Even some political parties who initially supported the idea, are now expressing reservations about the rationale for bringing a constitutional amendment to make provisions for their formation. They have also been joined by the legal community, human rights groups, liberals, compulsive critics of the military and even former judges in criticizing the move.
The main objections raised are: the idea is contrary to the fundamental principles of the separation of powers between the executive and the judiciary. In view of this, many countries have brought their military tribunals under the oversight of the civilian appellate courts; the superior courts in their judgments against the military courts and their jurisdiction have turned down the idea as unconstitutional including striking down of article 212-A added to the Constitution by General Zia to provide constitutional protection to military courts exercising jurisdiction over civilians; it is part of the Khaki narrative to blame the civilian institutions for the failure to check terrorism. It is the typical approach of by-passing reforming the existing legal system and going for unconstitutional solutions; the establishment of military courts is tantamount to tampering with the basic structure theory and may not withstand judicial review.
The foregoing arguments are beyond reproach from the legal and constitutional perspective and one can hardly take issue with these observations under normal circumstances. But those who prefer these arguments against the proposed setting up of the military courts are conveniently forgetting the fact the country is faced with an existential threat, an unusual situation demanding extra-ordinary and decisive responses to save the state which takes precedence over all other considerations. They also forget that in the past the superior judiciary has on numerous occasions invoked the doctrine of necessity to give protection to martial laws and even authorized the military dictators to amend the Constitution in violation of Article 6 of the Constitution. These decisions were ostensibly made under extraordinary situations, given as the justification for those judicial actions. If the doctrine of necessity can be invoked to give protection and legality to martial law regimes, why can’t such an approach be adopted and protected when it comes to resurrecting Pakistan if need be? If the country survives and is rid of the scourge of terrorism, the fundamental rights and the Constitution can be taken care of. And God forbid, if the state collapses due to our failure to respond to the actions and narrative of the terrorists, there will be no constitution and law to be defended.
The Constitution and laws are meant to serve the interests of the state, providing security to its citizens and protecting their lives and properties. And if a situation arises where even the existence of the state is threatened and it cannot be defended through the existing constitutional and legal systems, the inevitability of taking extra-constitutional and extra-ordinary measures becomes a national obligation. It must not be forgotten that the decision to go for military courts represents the will of the people of Pakistan. It is a now or never situation. The observation of the critics that the formation of the military courts was part of the military narrative to blame the judiciary for failure to punish terrorists, is also a flawed and misconceived notion. The rationale for the formation of military courts pertains to the shortcomings of the legal system and not the institution of the judiciary as the critics would have people believe. Our legal system comprises three tiers i.e. investigating agencies, prosecution and the courts.
Yes, there is a need to reform the existing legal system which is afflicted with a myriad of inadequacies and legal flaws, but the fact remains that the process of reforms requires a thorough debate on different aspects of the system and building national consensus. What the nation needs at the moment is a mechanism which ensures a speedy trial of suspected terrorists and takes care of the fears of the judges and witnesses. Military courts adequately ensures this.
The nation is at war against enemies of the state which require an impregnable unity amongst all stakeholders. It is not the time for turf wars. What needs to be understood by the detractors of military courts is that they are being set up only to try the ‘jet-black’ terrorists as assured by the COAS. They will be time-specific and will not become a permanent and parallel judicial arm of the state. History is replete with examples where nations, in times of adversity and extraordinary situations, have opted for such measures to confront the debilitating challenges to their security and territorial integrity. Adherence to the Constitution and law are the obligations of times of peace. Constitutions of all states invariably have clauses pertaining to dealing with emergency situations and permitting the suspension of fundamental rights for protecting the state. We are confronted with a situation which goes far beyond the ‘emergency’ defined even in our Constitution.

The writer is a freelance columnist. He can be contacted at ashpak10@gmail.com