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Tuesday March 19, 2024

Army’s job is to fight terrorists: SC

21st Amendment case

By our correspondents
May 22, 2015
ISLAMABAD: The Supreme Court on Tuesday observed that the Pakistan Army’s job was to fight against terrorists, and by establishing military courts the army was burdened further. The establishment of military courts was a failure of the government in the dispensation of justice.
Justice Asif Saeed Khan Khosa observed that judges should not be blamed for the delay in prosecuting cases pertaining to terrorism saying that the judges had sent 800 terrorists to the death cells after conducting their trials.
“It is unfair to blame the judges for their failure in prosecuting terror-related cases. The blame rests with the weak prosecution”, Justice Khosa, member of the 17-member full court, remarked during the hearing of identical petitions filed by various bar councils challenging the 21st Constitutional Amendment.
Apart from the petition filed by the Lahore High Court Bar Association (LHCBA), identical petitions had been filed in the apex court challenging the 21st Amendment to the Constitution. Barrister Zafrullah Khan, Chairman Watan Party Pakistan, Engineer Jamil Ahmed Khan of the Communist Party Pakistan, Munsif Malik of the PakistanJustice Party, Supreme Court Bar Association (SCBA), Pakistan Bar Council (PBA) and Sindh High Court Bar Association (SHCBA) had also challenged the 21st Amendment saying that it had affected the basic structure of the Constitution.
They had pleaded the apex court to interpret the 21st Constitutional Amendment as being inconsistent with Article 175(1), 203 and 4 as well as fundamental rights, the principle of separation of powers and the independence of the judiciary.
During the course of the hearing, Khalid Anwar representing the federal government argued before the full court that although anti-terrorism courts had been functioning in the country, they had failed and the military courts had been established under the 21st Constitutional Amendment.
The learned counsel submitted that 80 percent cases were still pending with the anti-terrorism courts saying that most of the witnesses in these cases were facing security problems, therefore, he contended that the establishment of military courts was approved to adjudicate upon terrorism-related cases as early as possible.
Justice Asif Seeed Khan Khosa, a member of the full court, however, confronting the argument of the learned counsel remarked that it was unfair to blame the judges for delaying prosecuting terrorism-related cases saying that the judges had sent 800 convicts to the death cells after conducting their trials.
“The blame rests with the weak prosecution and it was unfair to blame the judges”, Justice Khosa observed.Khalid Anwar in response admitted that it was the failure of the civil administration, and weak prosecution was also one of the factors due to which the menace of terrorism was not being controlled.
Justice Asif Saeed Khan Khosa while addressing the learned counsel said that it was easy to target and blame the judges reminding the counsel that in his arguments, he had said that the American Supreme Court decided 80 cases in a year.“But here we decide 80 cases a day”, Justice Khosa said.
Justice Qazi Faez Isa, another member of the bench, while referring to Article 245 of the Constitution asked the learned counsel why the government was putting greater burden on the army to perform as judges.
Khalid Anwar, however, replied that the instant matter had nothing to do with Article 245 of the Constitution. Justice Anwar Zaheer Jamali, another member of the bench, referred to a violation of Article 10-A and Article 4 of the Constitution, Khalid Anwar replied that after the 21st Constitutional Amendment, Article 10-A had been suspended for two years while Article 4 had nothing to do with the due process of law.
“Then you suspend provision of justice to the litigants for two years”, Justice Khosa said.Justice Anwar Zaheer Jamali observed that the basic responsibility of the courts is to provide speedy justice.
During the hearing, Chief Justice Nasirul Mulk asked the learned counsel as to whether the apex court had the jurisdiction to annul the amendment. Khalid Anwar contended that the 21st Constitutional Amendment had limited the jurisdiction of the apex court saying that it could not pass an order against the establishment of the military courts.
“You mean that the Supreme Court cannot exercise its jurisdiction regarding military courts”, Justice Asif Saeed Khan Khosa asked Khalid Anwar.“But two days back while arguing in the 18th Amendment case, you argued that the apex court had the jurisdiction”, Chief Justice Nasirul Mulk reminded Khalid Anwar.
Khalid Anwar, however, replied that the Supreme Court had the jurisdiction to review the 21st amendment but it could not rescind it.
“We have reservations on the “but”, Chief Justice replied to Khalid Anwar in a lighter tone.Later, the court adjourned the hearing till Monday wherein A K Dogar will argue before the full court.