ISLAMABAD: While many across the country scratch their heads and wonder how the government plans to set up the proposed special courts, to be headed by military officers, legal experts are pointing to past precedents as a good starting point.

A law officer told Dawn that the government could reintroduce articles 212-A and 212-B into the constitution. Both articles have, in the past, been used to set up military courts, but have since been removed or repealed.

Article 212-A dealt with the establishment of military courts or tribunals under Statutory Regulatory Order (SRO) No 1278 (1)/85, issued on Dec 30, 1985, along with a proclamation of the withdrawal of martial law under Gen Ziaul Haq. The military courts constituted under Presidential Order No. 21 of 1979 also ousted the jurisdiction of the high court from granting any injunction against challenges to offences punished by military courts.

Also read: A parallel judicial system?

Similarly, Article 212-B, entitled ‘Establishment of Special Courts for trial of heinous offences’, was added to the constitution through the 12th Amendment of 1991. The article was time-barred and, as is the case with the proposed measure being discussed currently, was only to remain in force for a period of three years from the time of promulgation.

Hamid Khan, a PTI leader and senior counsel, told Dawn: “We have to see whether the constitution can be amended to say something that is against the very spirit of the constitution,” recalling the landmark Sheikh Liaquat Hussain case of 1999. On that occasion, the Supreme Court had held that the government’s decision to establish military courts in Sindh was unconstitutional.

The apex court then had also ordered the transferring of all terrorism cases to the anti-terrorism courts (ATCs) set up under the Anti-Terrorism Act (ATA) of 1997.

“One possibility is to amend Article 245, but then the specific area where the court has to be established must be mentioned in the provision,” Mr Khan said, adding that even amending the provision would not give the government a free hand to create such courts.

Article 245 of the Constitution deals with the ability of the armed forces to defend the country, at the request of the federal government, against external aggression or a threat of war, and subject to law, act in aid of civil powers when called upon to do so.

“We have a long history of military courts in Pakistan which have never delivered,” Mr Khan regretted, adding that the decision taken by the political leadership seems to have been made under duress.

Former Supreme Court Bar Association president retired Justice Tariq Mehmood argued that the special courts headed by military officers would definitely operate outside the ambit of the existing judicial system. Presiding officers, he added, would not be appointed in consultation with the chief justice and would therefore not be under the command of the judiciary.

At present the constitution is silent on allowing military officers to head special courts, but amending the Pakistan Army Act of 1952 to give wide-ranging powers to the armed forces to court martial civilians accused of terrorism may help achieve this purpose, he said.

The question of jurisdiction will arise at some point, which may culminate in burdening the superior judiciary through litigation challenging the scope of the proposed special courts, he observed.

However, international law expert Ahmer Bilal Soofi told Dawn that in a war-like situation, such as the one the country was currently going through, there was a need to “trust the judgement of the executive, especially when it is supported by the entire political spectrum”.

When the executive is keeping the option of establishing special courts open, a meeting of all chief justices, held on Wednesday, has also given a strong message to tackle the delays incurred in deciding cases related to terrorism, he said.

Published in Dawn, December 26th, 2014