ISLAMABAD - The lawmakers in the Upper House of the Parliament on Monday showed their apprehensions over the establishment of military courts , saying such courts could lead to gross miscarriage of justice and normal courts could deal with the cases of terrorism effectively.

A number of lawmakers in the house while taking part in the debate on terrorist attack on Army Public School in Peshawar showed their reservations on military courts , saying those courts would curb the fundamental rights of citizens. They also said that terrorism could not be stopped by setting up military courts and the powers under Anti-Terrorism Act (ATA) and Protection of Pakistan Act (PoPA) were wide and covered all aspects. The senators viewed that any amendment in the Constitution for the formation of military courts for speedy trial of terrorism cases would hit the basic structure of the constitution.

However, assurance came from Leader of the Opposition in the Senate Aitzaz Ahsan who said that no fundamental rights of the citizens would be curtailed through the establishment of military courts .

Senior PPP leader Mian Raza Rabbani taking part in the debate said, “The killing of schoolchildren on December 16 is the most horrific and barbaric act in recent and contemporary history.” Showing his reservations on the establishment of military courts , he questioned if it made sense to bypass altogether a well developed, civilians led judicial system simply because that system implementation might be flawed. “The judges cannot convict or keep the terrorists in detention if the administration does not provide the necessary evidence before them,” he said. He said that military courts were governed by the Army Act 1952 and dealt with scheduled offences as mentioned in the Act but in certain cases they had the power to try civilians. Rabbani informed that Supreme Court had declared such courts, formed in 1998 by PML-N government only for Sindh, unconstitutional in 1999 and similarly in 1977 these courts were declared illegal by the Lahore High Court in Darvesh Arbi case. “Both prime ministers were subsequently removed by martial law,” he added. Rabbani feared that military court had different standards of proof, offered fewer protections to the accused and that could lead to gross miscarriage of justice.

“The centre of gravity was shifted from Islamabad to Rawalpindi when article 2445 was invoked in the federal capital and the Punjab and now the interior minister is calling upon other provinces to do the same,” he said and added if the present political dispensation could not solve this matter then why they were are sitting in this parliament, they should pack up and tender their resignations as in this state of affairs they could not move.

Barrister Farogh Nassem of MQM in his speech said that the question was not about the performance of normal courts but how could these convict accused without proper evidence. “We will have to empower the investigation and prosecution agencies and give the modern technology. Then we will have to amend the constitution without disturbing the basic structure of the constitution for the military courts . ATCs (anti-terrorism courts) also failed as the definition of terrorism has been made wide,” he said, adding that there was need to empower military courts .

Kalsoom Perveen of Balochistan National Party (Awami) also showed her reservations on the establishment of military courts and added that the word terrorism needed to be redefined as small acts of vandalism had also been added in it and people under such charges were being tried by the ATCs.

Senator Kazim Khan of PPP said, “The establishment of military court was a troublesome issue for me and I cannot explain it in words. I condemn the military courts and if my party thinks to have such courts, it should think upon it again,” he said.

Mian Raza Rabbani earlier in his debate pointed out that there was nothing new in the recently announced National Action Plan on Counterterrorism as all of its points had been taken from the National Internal Security Policy (NISP) of the government announced in February this year. He said that NISP was never implemented and added what was the guarantee that the government would implement the plan on counterterrorism. He said that NACTA was never made effective and even its board meeting was never held since its inception. “NACTA Board under the policy has a key role in capacity building of the criminal justice system, police, civil armed forces and other law enforcing agencies,” he reminded and added that directorate of internal security had to be set up under NACTA to coordinate intelligence work of all civilian and military intelligence agencies.

Rabbani said that NISP had failed miserably to take off. He said the government needed to answer that the law was already there to ban hatred literature and the question was of its implementation. “The banned organisations are working under new names. Let us see the steps taken in this regard,” he said. He questioned it would have to be seen within next 15 days how the government would stop foreign funding on terrorism and this would have to see in the next 15 days how many seminaries were registered in the country.

“The state used religion to further its own political agenda. The religious political groups also used religion to rival the government and come to power. The state deliberately contributed to the rise of armed extremists. The state under Zia-ul-Haq joined Afghan war and the state provided safe havens to the militants, all kinds of mercenaries including Arabs, Chechens and Uzbeks were allowed in the country. The state failed to repatriate them and the state created good and bad Taliban. They were allowed, particularly in Zia regime, to penetrate into civil and military services and political apparatus,” he said, adding that they needed to firstly analyse the facts that made them enemy and that day those were a challenge for the state.

“Is the state willing to give up its narrative of using religion for the furtherance of its agenda? Is the state willing to give up the policy of strategic depth? Is the state willing to give up the broader concept of pan-Islamism? Is the state wiling to clamp down on those within ranks who try to export jihad beyond Pakistan’s borderer? Is the state willing to remove whether in the political or civil or military apparatus those who are apologists?” Rabbani asked these questions.

Senator Nisar Muhammad Khan made an emotional speech in the house about the Peshawar terrorism incident and said that December 16 should be observed as the ‘mourning day’ every year in future.