ISLAMABAD - As the government is finalising steps to establish military courts in the country, legal experts have cautioned that these courts could be challenged in the High Courts or Supreme Court.

The government, following the public Army School, Peshawar, brutal attack and on the insistence of army, had decided to constitute military courts in the country for speedy trials of militancy cases.

The PML-N government, media, all political parties and civil society are unanimous on the establishment of military courts.

Advocate Col (retd) Inam-ur-Rahim told The Nation on Sunday that if the government establishes the military courts, the courts in view of Dervesh Arabi and Liaquat Hussain’s judgment would set aside them and would not permit parallel judiciary in the country.

The sources shared that in view of these two judgments in the given circumstances, military courts could only be established in the tribal areas as the Article 247(7) limits the jurisdiction of Supreme Court of Pakistan and the High Court in Federal Administrative Tribal Areas, unless legislated by the Parliament.

When the federal government had enforced Article 245 of the Constitution in Islamabad to thwart the Pakistan Tehreek-e-Insaf (PTI) and Pakistan Awami Tehreek (PAT) 'azadi march', The Nation had published a story (Article 245 imposition linked to FATA military courts) pointing out that the PML-N government in exchange for imposition of Article 245 in the federal capital would give in to the demand of the army to set up military courts.

That exactly had happened approximately after the four-and-a-half-months as the federal government in view of the terrible tragedy in Peshawar wanting the establishment of military courts for the trial of hardcore terrorists.

Since the launch of war on terror in the country, aftermath of 9/11 episode, the armed forces lost number of officers and jawans in the terrorist attacks and only six militants were hanged after the Prime Minister Nawaz Sharif had lifted the moratorium on capital punishment on 19th December.

In the past, time and again the army had expressed concern that they arrest the terrorists but the courts acquit them and they again launch attack against them. Though the Protection of Pakistan Act 2014 and the Anti-Terrorism Act 1997 have the provisions speedily hold trial of terrorists but the safety and security of judges, prosecutors, witnesses and the petitioners is the main concern. The Protection of Pakistan Act 2014 and the section 21 of ATC 1997 provides for the protection to judges, counsel, public prosecutor, witnesses and persons connected with the court proceedings. Besides that many counsels and witnesses have been killed and, therefore, the cases are inconclusive.

The sources said pending cases of missing persons in the superior judiciary is a greater worry than Musharraf high treason trial for the high command of the Armed Forces. According to the report submitted in the Supreme Court, there are about 700 suspected terrorists detained in the internment centers for the last 4 to 5 years without trial. In the operation Zarb-e-Azb the army had also arrested many terrorists, involved in heinous crimes, therefore, for their trial the army require military courts, as the superior judiciary in missing persons cases had observed that no one can be held for indefinite period without trial.

In April 2014 the Peshawar High Court through a judgment had instructed the federal government to bring suitable amendments in Article 247 (7) of the Constitution to enable the people of FATA to invoke the jurisdiction of superior courts for obtaining their fundamental rights guaranteed in the Constitution of Pakistan. Although protection is available to them under the Constitution but it cannot be availed because of the bar contained in the clause 7 of Article 247. "We are advising the federal government to submit a reference in the National Assembly and Senate for suitable amendments in sub-section 7 of Article 247 of the Constitution."

The federal government, instead of accepting and doing legislation in that regard, filed an appeal in the Supreme Court against the PHC judgment, praying that PHC judgment is liable to be set aside.

It is also noteworthy that the Supreme Court has recently (in the first week of December) dismissed the Muttahida Qaumi Movement and others' petitions, for being infractous. The application had sought action against Nawaz Sharif for establishing military courts in Karachi in 1997.

The federal and the Khyber Pukhtoonkhawa governments have not yet answered to the questions posed by Supreme Court in 35 missing persons case; Whether the ordinary courts are obliged to concede to the request of army authority or it is its discretion to determine whether or not to accept the request of army authorities for transfer of the case.