Special courts: officers possessing law degree to be appointed judges

Military officers possessing a law degree will be appointed as judges in special courts to try terror-related suspects, informed sources revealed to Business Recorder. The Judge Advocate General (JAG) Branch of the Pakistan Army is composed of senior Military officers, lawyers and judges who provide legal service to Army personnel. JAG branch comes directly under the Adjutant-General Branch of the army.
JAG officers provide legal help to military personnel on all legal aspects, in particular advising the presiding officers of court-martial on military law. According to the military justice law of Pakistan Armed Forces, the JAG's ruled decision cannot be challenged in civilian courts nor can the civilian court interfere in JAG court's hearing.
The government tabled one amendment to the constitution (requiring a two-third majority) and an amendment to the Army Act 1952 (requiring a simple majority) on Saturday after an agreement was painstakingly reached the day before during a marathon session of an All-Party Conference.
Article 239 (5) of the Constitution stipulates that "no amendment of the Constitution shall be called in question in any court on any ground whatsoever." However, former Justice Wajihuddin Ahmed of Pakistan Tehreek-e-Insaf (PTI) told Business Recorder that amendments can be challenged in the apex court as the higher courts have the power of judicial review of an amendment that is found conflict with the law or constitution.
The apex court, he further elaborated, can strike down any amendment approved by parliament with consensus if it deems it against the basic structure of the constitution or against the fundamental rights. Waseem Sajjad, former chairman Senate and a senior leader of Pakistan Muslim League-Quaid (PML-Q), said that the establishment of military courts in normal situation is unconstitutional, but in extraordinary situation such courts become inevitable.
He said that more than 3,000 terrorists were arrested as a result of the Swat military operation; as they were not awarded exemplary punishments their arrest did not act as a deterrent to terror attacks. This loophole needed to bridged, he added. He further said that the recently introduced 21st constitutional Amendment and the amendment to the Army Act, 1952 has been drafted by top legal brains of the country keeping in view that if challenged in a court they can defend it. Top lawyer and PML-N Senator Syed Zafar Ali Shah said that he had opposed setting up of military courts on the floor of the Senate, which was against the decision of his party.
Former president Supreme Court Bar Association (SCBA) and Jamiat-e-Ulama-Islam-Fazal (JUI-F), Kamran Murtaza, however, contended that the 21st constitutional amendment and the Army Act amendment bill would be challenged in apex court on ground of mala fide intent.
He added that it was against Article 175 of the Constitution which deals with appointment of Supreme Court, High Courts and Federal Shariat Court judges. He contended that the main purpose of the recently-introduced bill in National Assembly is to bypass the judiciary. Muhammad Shafqat Khan Abbasi Raja, a Supreme Court Lawyer and former MPA of Pakistan People's Party (PPP), said that the extraordinary situations in wake of a terrorist attack on schoolchildren in Peshawar left the government with no option but to establish military courts.
He stated that existing circumstances in the country led to the evolution of a consensus among all political parties. To a question about the possibility of challenging the amendment in Supreme Court, he said the court may not strike down the bill if it does not impact on the independence of the judiciary.
He said that the apex court had not struck down any constitutional amendment, adding the 19th Constitutional Amendment was also challenged in apex court but it is yet to give a ruling on it. Abbasi further stated that Supreme Court in the Sheikh Liaquat Hussain case in 1999 had declared military courts unconstitutional, which was not a constitutional amendment but an Act of parliament.
In 1999, a nine-judge Supreme Court bench, headed by the then Chief Justice Ajmal Mian had declared Ordinance No XII of 1998 illegal. The ordinance was promulgated by the then government of Prime Minister Nawaz Sharif which was later challenged in court by Sheikh Liaquat Hussain.