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January 12, 2015

Legal eagles divided over military courts decision


January 12, 2015

There has been a varied reaction among legal experts of the city over the establishment of military courts as some defended the step for the exceptional circumstances it was taken in, while others pointed out that the army would have been better utilised for additional protection of existing anti-terrorism courts (ATCs).
Advocate Faisal Siddiqui argued that when Nawaz Sharif’s government had set up special courts in 1998, even the apex court had observed during the Liaquat Hussain case that the army could well have been assigned to protect judges.
Instead, the army was given powers to hear cases and deliver verdicts that could be challenged in the apex court.
Siddiqui said that challenging the newly amended provision under Article 184 (3) was not an extraordinary act.
He noted that due to the sheer number of cases (more than 1,850) pending with ATCs, smooth and speedy deliverance of justice was simply never possible with only 10 judges.
Hence, he said, it would have made much more sense if efforts were made to appoint fifty or sixty more judges to ease the burden.
“Addressing these core issues instead of passing a constitutional amendment to hand over judicial powers to the military would have been the better option,” said Siddiqui.
Advocate Mubashir Ahmed highlighted the fact that military courts had been set up without the imposition of an emergency.
He said it was interesting to note that none of the constitutional provisions, such as Article 184 (3) or Article 199, had been suspended and, in this situation, there common citizens were not legally barred from challenging the new laws.
Conceding that military courts had been set up to deal with unprecedented terror threats, Ahmed however maintained that improving the efficacy of the civil judicial system was not an impossible task.
“Instead of introducing a controversial judicial system, it would have been far better to empower judges and prosecutors, while

providing full protection to prosecution witnesses,” he said.
Replying to a question, he said the government would hire independent prosecutors in the military courts system, while the accused would be able to hire any civilian lawyer for representation.

‘Just like special courts’
Another senior member of Karachi’s legal fraternity, Advocate Shakeel Ahmed, saw nothing wrong in the establishment of military courts.
“There are a lot of special courts and tribunals for matters such as banking, financial fraud or government employees’ issues,” he said.
“In some courts, a plaintiff cannot move the High Court for an appeal and, instead, the Supreme Court is his or her only option,” he explained.
He cited the role of the Federal Services Tribunal as an example.
“If a plaintiff loses his or her case with the tribunal, they cannot approach the Sindh High Court but can move the Supreme Court for an appeal. No one finds that strange because there is a constitutional binding in this regard,” Ahmed said.
“In the same context, military courts were being set up under a constitutional amendment and will function independently just as the NAB or other banking courts work under certain constitutional provisions.”
Advocate Khurram Abbas spoke of the divided opinion among lawyers over the matter.
“There are mixed views. Terrorists are threatening Pakistan like never before and we have no option but to deal with any such elements with force,” he said.
“As a lawyer, I cannot be truly happy with a decision that affects the existing judicial system. However, due to a lack of protection for judges, prosecutors and witnesses, terrorists were actually never threatened by the legal system.”
In such conditions, he concluded, it would be fair to say that introducing a system which militants actually fear was a justified measure.

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