Presently defunct military courts, though hailed as part of an existential war for Pakistan, were an oxymoronic appendage to the constitutional framework of the Pakistani state and were never justified or sustainable under any recognized principle of constitutional governance.
In our criminal justice system applicable to ordinary citizens in general, we have the regular courts established under the Code of Criminal Procedure 1908 administering the Pakistan Penal Code 1860 (and other special laws) as well as a whole host of special courts such as the anti-narcotics courts administering the 1997 anti-narcotics law, anti-terrorism courts administering the 1997 anti-terrorism law, accountability courts administering the 2001 NAB ordinance, and, recently, special courts established under the Protection of Pakistan Act 2014.
In a way, military courts established under the 21st Amendment in January 2015 were just another set of special courts created to deal with a special set of offenders, that is, members of terrorist groups “using the name of religion or a sect”. But there were four important differences:
Firstly, unlike all other special courts, accused being tried by military courts lost all their fundamental rights, notably the right to privacy, right not to be tortured for the purposes of extracting evidence, right to consult and be defended by a legal counsel of choice, right not to be compelled to be a witness against yourself, right to fair trial and due process and right to information.
Secondly, all other special courts are administered by civilians with rights of appeal to superior judiciary, that is, the several High Courts or the Supreme Court. However, military courts were manned by military officials and their decisions were open to appeal only before the military authorities (the superior judiciary has asserted only a limited constitutional right to review on purely technical grounds without any right to full reappraisal of evidence and merits of the case).
Thirdly, all other criminal laws hitherto enforced in Pakistan are intended to give protection to different religions. However, the 21st Amendment is unprecedented in that it acknowledges religion as a possible tool for terrorism.
Fourthly, military courts, unlike any other criminal court, were designed to work for only two years.
These differences suggest that military courts were designed to be a temporary arrangement existing practically outside the Constitution and not just parallel to the existing criminal justice system.
To its credit, the 21st amendment offered much needed and welcome clarity on the nature of the malaise, that is, religious and sectarian terrorism, but the solution it offered effectively created a period of constitutional deviation that bypassed not just the fundamental rights of citizens but the entire criminal justice system set up under the Constitution.
It was precisely for these reasons that, in the 1999 case of Sheikh Liaquat Hussain v Federation, the Supreme Court had declared unconstitutional similar military courts established through a presidential ordinance in 1998 to try civilians accused of terrorism. However, the Parliament tied the hands of the Supreme Court this time around by giving express constitutional protection to the military courts under the 21st amendment.
The 21st amendment seemed to suggest that the Constitution did not already have any provision to deal with war or internal disturbances. However, that is not the case. Articles 232 and 233 of the Constitution expressly provide for proclamation of emergency and suspension of fundamental rights in any given province on account of war or internal disturbance. The fact that no mainstream political party has come on record to demand such proclamation of emergency shows two things: firstly, mainstream political parties want to avoid the vast political repercussions of invoking Articles 232 and 233, notably the surrender of most legislative and executive powers of the province to the federation; and secondly, despite all the alarm, the situation has never been as grave as to demand a proclamation of emergency envisioned by the Constitution in case of war and internal disturbance.
The above discussion suggests that the 21st amendment effectively introduced a novel category of emergency into the Constitution for a limited period of time.
A written Constitution or any amendment therein is supposed to address a problem for all the foreseeable future. Therefore, a constitutional amendment with a sunset clause, like the 21st, only shows that either its addresses a novel problem that would have completely ceased to exist when the sunset clause kicks in or that the parliamentarians have abandoned all pretence to make a reasonable attempt to look into the foreseeable future. It is quite clear that the latter would be closer to reality if the 21st amendment is re-enacted once against with another sunset clause.
Assuming there is indeed a state of emergency existing in the country, and assuming that the existing constitutional provisions do not provide an efficient solution under the circumstances, what are the permissible solutions that do not smack of legislative incompetence amounting to defilement of the Constitution?
Keeping in view the basic principle of legislative foresight, there are only two permissible approaches that can be used to find a workable solution.
Firstly, the emergency provisions of the Constitution can be amended to address not only the problem at hand but also all similar problems likely to arise in future so that such provisions can be invoked if and when required without needing to pass a new amendment every time.
Alternatively, keeping in view the suggestion that perhaps the situation is not so grave as to require the citizenry to sacrifice their fundamental rights en mass under a state of emergency, we may regularize the offences committed “using the name of religion or a sect” into our ordinary criminal justice system under the Constitution with all the fundamental rights but with special provisions to maintain secrecy and safety of witnesses, lawyers, and judges.
Neither of these approaches exclude the use of military courts but they ensure, unlike the 21st amendment, that such courts operate within a recognized scheme of constitutional governance.
Proponents of military courts insist that fundamental rights of the accused are not violated before the military courts. However, if that is the case, why did the need arise in the 21st amendment to expressly deprive the accused before the military courts of their fundamental rights and the right of full appeal before the superior judiciary? Needless to say, enforcement of fundamental rights cannot be left to the goodwill and discretion of the military courts but has to be a binding obligation under the Constitution requiring certification from the superior judiciary.
Outside of the aforementioned two approaches, creation or extension of military courts represents nothing but sheer legislative incompetence of the highest possible order and a grave injustice to the democratic mandate.
The author is a lawyer based in Lahore