Opinion on the implications of setting up military courts is divided across the country, with many saying that the measure could be misused. To understand what is possible in the context of such courts, Dawn spoke to former SCBA president Yasin Azad to find out if military courts could strengthen the judicial system.
Q. After 9/11, the US government introduced the Patriot Act, which also curtailed the liberty of civilians. Don’t you think Pakistan can also formulate such a law for a limited period to try suspected terrorists?
A. The US introduced the Patriot Act for foreigners not for its own citizens. Under this act, only those suspects were tried who had been captured during the Afghan war or those who had been extradited to the US by other states such as Pakistan.
The civil society in America criticised the act after which the US had to keep the detainees outside the country at the Guantanamo Bay for trial.
The Patriot Act did not curtail the liberty of the US citizens but brought the citizens of other countries under the ambit of the American courts.
Q. Do you think the military courts can be set up through an act of parliament rather than amending the constitution?
A. A court can only be established under a relevant article of the constitution. Courts can be established under articles 175 and 203 of the constitution. The special tribunals are constituted under article 212 and election tribunals under article 225 of the constitution. The army act empowers the military to establish its own courts and there is no other provision for the establishment of courts. Without a constitutional amendment, the military courts cannot be established.
Q. What is the legal position of amending the constitution for the establishment of military courts for the trial of civilians?
A. In my opinion, the military courts cannot try civilians as for this the government has to amend article 8 to 26 of the constitution.
These articles are related to the fundamental rights of the citizens. Amending these articles means that the basic structure of the constitution is being changed. I wonder why legal experts of the government and the opposition parties did not point out this. Any constitutional amendment in this regard is challengeable in the superior courts. The government can increase the efficiency of the existing Anti-Terrorism Courts by ensuring legal protection to the judges and witnesses. They only need to amend article 245 after which special measures may be adopted for the security of the judges, witnesses and the prosecutors.
Published in Dawn, January 3rd, 2015
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