Babar Ayaz
Though the Supreme Court had given clear guidelines in Liaquat Hussain vs. Federation of Pakistan case in 1999 when it disallowed establishment of military courts, they were never implemented. Had the subsequent governments and the superior judiciary implemented these guidelines in the last 15 years, the contentious question of military tribunals would not have arisen again.
The Supreme Court laid down the following guidelines which may contribute towards the achievement of the objective for which the establishment is demanding military courts. First, the cases relating to terrorism be entrusted to the Special Courts already established or which may be established under the Anti-Terrorism Act, 1997 (hereinafter referred to as ATA) or under any law in terms of the judgment of this Court in the case of Mehram Ali and others vs Federation of Pakistan (PLD 1998 SC 1445). Second, only one case be assigned at a time to a Special Court and till judgment is announced in such case, no other case be entrusted to it. Third,
the concerned Special Court should proceed with the case assigned to it on a day-to-day basis and pronounce judgment within a period of seven days as already provided in ATA, or as may be provided by any other law. Fourth, the chalaan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court. Fifth, an appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal. Sixth, any lapse on the part of the investigating and prosecuting agencies shall entail immediate disciplinary action according to the law applicable. Seventh, the Chief Justice of the High Court concerned shall nominate one or more judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines. Eight, the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines.
The judge or judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court. Nine, that besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the ATA the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, Advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.”
Indeed, the issue of providing protection to the judges hearing the terrorist cases is necessary. But this can be dealt with by keeping the judge anonymous and providing them with the same level of protection which is provided to the judges of the military courts.
At present, ATCs are understaffed and overburdened. According to Barrister Faisal Siddiqui, “there are10 ATC judges in Karachi burdened with over 1850 cases. It is humanly not possible for them to decide cases in 7 days.” “One reason for so many cases is that ATC is burdened with most heinous crimes which do not fall into the category of terrorism,” he explained.
Concluded
