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Thursday March 28, 2024

No justification acceptable for martial law: SC

Justice Asif Saeed Khosa says martial law is martial law and there is no good or bad martial law; Justice Sheikh Azmat Saeed asks will military courts exist if terrorism exists for 200 years

By our correspondents
June 05, 2015
ISLAMABAD: The Chief Justice of Pakistan (CJP), Justice Nasirul Mulk, on Thursday remarked that no justification was acceptable to the apex court for imposition of martial laws by the military dictators whether these were imposed partly or fully.
The chief justice gave this observation while heading a 17-member full bench of the Supreme Court (SC) that took up the 18th and 21st constitutional amendments case for hearing.Justice Asif Saeed Khosa remarked: “There is no good or bad martial law, martial law is a martial law.
“The judiciary was not included in the previous martial laws and now an attempt has been made to bridge the gap by including it in the 21st Amendment. Had space been created in the Constitution for the establishment of military courts from the very beginning, even then the judiciary was to play its role.”
Justice Sheikh Azmat Saeed remarked: “If terrorism does not stand eliminated in the next 200 years, then will these military courts exist till 200 years? What is the justification for setting up the military courts?”
Hamid Khan, the counsel for the Lahore High Court Bar (LHCB), argued that there was no justification in any way for the establishment of military courts.Justice Asif Saeed Khosa remarked: “Military courts were set up under the administrative powers earlier. An amendment was made to Article 175-A to provide protection to military courts.”
Hamid Khan said the military courts awarded capital punishment to Abdul Sattar Niazi in 1953 and the martial law administrator commuted his death sentence into life imprisonment. “The judiciary set aside the decision of the military court.” Justice Jawwad S. Khawaja remarked: “Did Gen Azam himself impose the martial law?”
Hamid Khan said the civil administration had requested the army for help through the civil government.The chief justice remarked: “Martial law was slapped through mutual consultation.”
Justice Sheikh Azmat remarked: “Military courts were set up in 1953 under the Doctrine of Necessity to rectify a mistake. If terrorism continues for 200 years, will the military courts then continue to function till this period? What is its justification?”
The chief justice remarked that there was no justification for the imposition of martial law whether it was complete or incomplete.Hamid Khan said “It was tried that martial law could not be imposed under the existing Constitution. Justification for martial law cannot be made under the Doctrine of Necessity. Every case has its own situation.”
He read out the decision given by Justice Karam Elahi Chohan wherein it was said that all the matters will be decided as per the law and the Constitution and no matter will be kept out of the jurisdiction of the court.
“Special tribunals can be set up like the civil courts. The federal government can call the army in aid of civil institutions only under Article 245. The army will work where the issue exists. Act of parliament can’t allow the army to perform the function of courts. They are allowed to function within their parameters. The army can’t be delegated the powers of courts because it will be a violation of fundamental rights. An independent judiciary is part of basic contours of the Constitution.”
Justice Saqib Nisar said: “The SC had overruled the decision what you have read out.”The chief justice remarked: “We will resume the hearing on June 16. We want to complete this case during the current month.”