In the wake of Peshawar school tragedy all the parliamentary parties decided on Dec 24 to set up special courts to be presided over by army officers for trying suspected terrorists. As the Supreme Court has declared in 1999 the setting up of military courts as unconstitutional and illegal, therefore, the political leadership has decided to amend the Constitution so as to provide constitutional cover to the proposed special courts.

Keeping in view the first two terms of Nawaz Sharif as prime minister in the 1990s, he is known for his penchant for special laws and courts, including military courts. However, this time due to the severity of the Peshawar school carnage the leaders of other political parties, who in past adopted clear stance against military and special courts, had also agreed with him to set up such courts.

Legal experts dealing with the subject believe that the government has to amend several articles of the Constitution for introducing courts of military officers. First of all the Parliament has to amend Article 10-A, included in the Constitution through the Constitution (Eighteenth Amendment) Act 2010, which guarantees fair trial and due process. While majority of the people wants punishment for terrorists at the earliest, it is also a matter of concern about how the proposed military courts will function and what mechanism will be in place to check their misuse.

Through such courts the jurisdiction of civil courts, including the Supreme Court and high courts, would be curtailed so as to empower special courts to try terrorism-related offences and subsequently hearing of appeals by special appellate forums.

“Under Item No 55 of the Federal Legislative List in the Constitution of Pakistan the parliament could not reduce the powers of the Supreme Court and it can only further enlarge the jurisdiction of the apex court,” said Shahnawaz Khan, an advocate of the Supreme Court. He said that though there was consensus among the political parties over the issue, any amendments to be made in the Constitution were likely to be challenged before the apex court.

Item No 55 of the Federal Legislative List states: “Jurisdiction and powers of all courts, except the Supreme Court, with respect to any matter in this List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers.”

Mr Shahnawaz pointed out that in his first term as prime minister the then government of Nawaz Sharif had amended the Constitution and incorporated Article 212-B through which special courts for speedy trial were set up for three years. However, he said that those courts were not having military officers as judges. Later, he added, during Nawaz Sharif’s second term military courts were set up in Sindh in 1998, which were subsequently declared unconstitutional by the Supreme Court.

Following the enactment of the Constitution of 1973 the military courts were set up by General Ziaul Haq by incorporating Article 212A in the Constitution through Constitution (Second Amendment) Order, 1979. The said Article was omitted through Presidential Order No 14 of 1985.

When in 1991an amendment was made to the Constitution for including 212B subsequently the then government also first promulgated the Special Courts for Speedy Trial Ordinance and then enacted the Special Courts for Speedy Trial Act 1992. The then special court included a judge who being a person who was, or had been, or was qualified for appointment as a judge of a high court and was appointed by the federal government after consultation with the chief justice concerned of a high court.

Then government of prime minister Nawaz Sharif had enacted the Anti-Terrorism Act in 1997, but he was not satisfied with its performance and had set up military courts in Sindh. In 1998 his government had invoked Article 245 for Karachi by issuance of a notification by the ministry of interior. The ministry had issued a notification SRO 1304 (1)/98 on Nov 20, 1998, for maintaining law and order and security within the limits of the Karachi division by the armed forces. Similarly, another notification was issued on Nov 27, 1998, for invoking Article 245 for the above purpose in respect of remaining four divisions of Sindh, namely Hyderabad, Mirpurkhas, Sukkur and Larkana. Furthermore, an ordinance was promulgated for setting up military courts.

In the famous case of Sheikh Liaquat Ali (PLD 1999 Supreme Court 504) a full bench of the Supreme Court, headed by then chief justice Ajmal Mian, had declared as unconstitutional and illegal the setting up of military courts. The judgment clearly demonstrated that the civil authorities as well as the security forces could not act outside the parameters and limits enshrined in the Constitution.

Even during the government of Zulfikar Ali Bhutto summary military courts were set which were also declared unconstitutional by the superior courts. After the general elections of 1977, law and order situation emerged as a result of agitation started by then opposition parties against alleged rigging in the polls. When then governments of Sindh and Punjab were unable to control the situation summary military courts were set up to deal with the agitators in purported exercise of powers under Article 245 of the Constitution by making suitable amendments in the Pakistan Army Act, 1952.

That action of the government was challenged before the Lahore and Sindh high courts. The judgments of the two high courts in those petitions are reported as Darwesh M. Arbey v. Federation of Pakistan (PLD 1980 Lahore 206) and Niaz Ahmed Khan v. Province of Sindh (PLD 1977 Karachi 604), respectively. In these judgments the courts clearly pronounced that Article 245 of the Constitution cannot be invoked by a Political Government to rule through the Armed Forces.

Legal experts believe only time would show whether the superior courts would agree to surrender powers to the special military courts or not and what would be the outcome of these proposed courts. The legal circles also fear that setting up of military courts might result in a tussle between the government and judiciary.

Published in Dawn, December 29th, 2014