Another lawyer speaks out in Pakistan

Umer Gilani

If the military courts proposal seems like a train wreck about to happen, the good news is that people are continuing to speak out. The latest example is this instructive op-ed by Islamabad lawyer Umer Gilani. The history of Pakistani judicial hostility to military courts he recounts is worth bearing in mind:

"In a large number of cases spread over decades, Pakistani courts have already noted the constitutionally suspect statues of military ‘courts’. In 1980 (NLR 1980 Civ. Quetta 873), at the high tide of martial law, the Balochistan High Court struck down Article 212-A of the constitution, added by General Zia to provide constitutional protection to military courts exercising jurisdiction over civilians. Nor have military courts entirely escaped the scrutiny of our constitutional courts, in their dealings with military personnel. 

"In 1985, the Federal Shariat Court declared the absence of an appellate process under the Army Act un-Islamic and thus unconstitutional. (PLD 1985 FSC 365 upheld by the Supreme Court in PLD 1989 SC 6) The Army Court of Appeals prescribed in s. 133-B of the Army Act was brought in as a result of that intervention. In 2009, the FSC issued another order directing the Army Court of Appeals to provide appellants with greater due process. (PLD 2009 FSC 36) Most recently, in 2013, the Supreme Court commuted a death sentence passed by the Army Court of Appeals. The court reasoned that even though it was not formally sitting in appeal over the Army Court of Appeals, it could still set aside the latter’s orders if they had been passed “without jurisdiction”. 

"The last time army courts were given jurisdiction over civilians in Mehram Ali v. The Federation (PLD 1998 SC 1445), the Supreme Court turned them down. This time around the legislation will come wearing the armour of a constitutional amendment. But, in Pakistani jurisprudence, thanks to the basic structure theory of the constitution, even a two-thirds majority provides no iron-clad guarantee. A few years ago, in the 18th Amendment case, our Supreme Court actually came quite close to striking down a constitutional amendment. This time around, the court just might go the extra mile."