ISLAMABAD: The government’s legal advisers are weighing the option of amending Article 8 (1) and Article 212-A and B of the constitution in order to establish military courts in the country, officials privy to discussions on the issue told Dawn on Sunday.

The proposed constitutional amendments currently under consideration will be introduced in these two articles. Article 8 is titled ‘Laws inconsistent with or in derogation of Fundamental Rights to be void’, while Article 212 deals with administrative courts and tribunals.

If the amendments are carried out, changes will be made accordingly in the Army Act 1952 to set up special trial courts to try terror suspects. Under the proposed constitutional amendment, the military courts will cease to function after a period of two years.

Also read: Military courts

“This is the initial draft of the constitutional amendment which the government intends to present before parliament as soon as possible, perhaps this week,” a government functionary told Dawn.

Legal experts argue empowering superior courts is a better recourse than military courts

Article 8 reads: “Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.”

Talking about the proposed amendments, Supreme Court lawyer and former Human Rights Commission of Pakistan chairperson Asma Jahangir told Dawn that it was obvious from day one that before setting up military courts, the government would have to dilute constitutional provisions which provide protection to basic human rights in order to set up military courts.

She further explained these changes in the constitution would also undermine Article 10-A, which provides the right to a fair trial to every citizen. It reads: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” In Ms Jahangir’s opinion, this exercise will severely affect the independence of the judiciary.

The irony is that similar measures have been used in the past, but in each instance they failed to deliver the necessary results. However, Ms Jahangir said, people at the helm of affairs seemed to be averse to learning from past experiences.

“Will the existing courts become effective in two years, because the government says military courts will only remain in operation for just a couple of years,” Ms Jahangir asked.

“Instead of blaming the courts for not putting terrorists in jail, Prime Minister Nawaz Sharif must unequivocally accept that the establishment of military courts is a demand of the army as part of its ongoing operations. I’m surprised why the government is looking for excuses to take this measure, which is totally against the spirit of the constitution.”

Former law minister and Supreme Court Lawyer Dr Khalid Ranjha told Dawn that whatever route the government treaded to constitute military courts, be it amending Article 212 or Article 245, “I am not hopeful the measure will serve the intended purpose.” Whenever such options were used in the past, they were severely criticised within six months and eventually led to discrediting the military in the eyes of the general public, he said. Dr Ranjha recalled Gen Zia’s regime when military courts were first formed.

Echoing similar concerns, Supreme Court lawyer Faisal Chaudhry, who is currently representing former president Gen Pervez Musharraf before a special court, said that there was no place for military courts in the existing constitutional framework. Mr Chaudhry called this “a knee jerk reaction”, because it wouldn’t address the real issue, which was ineffectiveness of regular courts in dealing with terrorism cases.

Recalling the 1999 Supreme Court verdict in the Sheikh Liaquat Hussain, Mr Chaudhry said there was an additional note in the judgment by Justice Munawar Mirza, who criticised the high courts for failing to dealing with terrorism cases, which brought a bad name to the judiciary. Unfortunately, the superior judiciary has failed to rise to the occasion, which has given the executive an excuse to go for such “out of the way measures” that require constitutional amendments.

Yasin Azad, a former president of the Supreme Court Bar Association, told Dawn that the bar was considering challenging the proposed military courts and were waiting for the final draft of the government’s bill in the matter.

Published in Dawn, December 29th, 2014