Military courts to stay: SC verdict

ISLAMABAD: The military courts established under the 21st Constitutional Amendment to try hardened terrorists will stay as the Supreme Court (SC) on Wednesday upheld with a majority the establishment of these courts after dismissing a set of 15 constitutional petitions filed against them.
The apex court observed in the verdict that the Constitutional Amendments approved by parliament could not be struck down.The most senior judge of the apex court, Justice Jawwad S Khawaja, who is going to take oath as the next Chief Justice of Pakistan on August 17, however, in his 25-page dissenting note declared that the 21st Amendment was liable to be struck down.
Chief Justice Nasirul Mulk and Justice Dost Muhammad Khan, while announcing the verdict, also dismissed the petitions against the incumbent procedure of appointment of judges in a wide 13-4 decision.
“In view of the respective opinions recorded above by a majority of 13 to 4, these constitutional petitions are held to be non-maintainable.“However, by a majority of 14 to 3 the constitutional petitions challenging the Constitutional (18th Amendment) Act (Act X of 2010) are dismissed, while by a majority of 11 to 6 the constitutional petitions challenging the Constitution (21st Amendment) Act (Act 1 of 2015) and the Pakistan Army (Amendment) Act (Act II of 2015) are dismissed,” the court ruled.
The Supreme Court Bar Association (SCBA), the Lahore High Court Bar Association (LHCBA) and other lawyers bodies had challenged the establishment of the military courts under the 21st Constitutional Amendment and the Pakistan Army Act 1952.
The petitioners had contended that the military courts were an expression of no-confidence in the prevailing judiciary, a violation of basic human rights and against the basic structure of the Constitution.
Dismissing the identical petitions, the apex court with a majority of 11-6 upheld the establishment of military courts under the 21st Constitutional Amendment aimed at trying hardcore militants.
The military courts were established under the 21st Constitutional Amendment following the gruesome attack on the Army Public School in Peshawar in December last year, killing over 130 students.
A 17-member full bench of the apex court headed by ChiefJustice Nasirul Mulk heard the constitutional petitions, challenging the 18th and 21st constitutional amendments. The 375-page judgment, authored by Chief Justice of Pakistan Justice Nasirul Mulk, was supported by 10 judges — Justice Anwar Zaheer Jamali, Mian Saqib Nisar, Justice Sarmad Jalal Osmany, Justice Amir Hani Muslim, Justice Gulzar Ahmed, Justice Sh Azmat Saeed, Justice Iqbal Hameedur Rehman, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Maqbool Baqar.
Justice Jawwad S Khawaja, Justice Qazi Faez Isa, Dost Muhammad Khan, Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry and Justice Asif Saeed Khan Khosa gave their dissenting notes on the verdict.
The verdict held that the Constitution contained a scheme reflecting its salient features which defined the Constitution. Such salient features were obvious and self evident upon a harmonious and holistic interpretation of the Constitution. In an effort to discover such salient features material outside the Constitution could not be safely relied upon.
“The salient features as are ascertainable from the Constitution including democracy, parliamentary form of government and independence of the judiciary,” says the verdict adding that the amendatory powers of the parliament were subject to implied limitations.
“Parliament, in view of Articles 238 and 239, is vested with the power to amend the Constitution as long as the salient features of the Constitution are not repealed, abrogated or substantively altered, the verdict added.
The court ruled that it was vested with the SC jurisdiction to interpret the Constitution in order to ascertain and identify its defining salient features. “It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the salient features of the Constitution have been repealed, abrogated or substantively altered as a consequence thereof”, says the verdict.
Article 175A as inserted by the 18th Constitutional Amendment, in view of the provisions of the 19th Constitutional Amendment and the dictum laid down by this court in the case, reported as Munir Hussain Bhatti, Advocate, and others v Federation of Pakistan and another (PLD 2011 SC 308 and PLD 2011 SC 407) do not offend against the salient features of the Constitution. The other questioned provisions thererof are also not ultra vires the Constitution.
The court observed that the 21st Constitutional Amendment and the Pakistan Army (Amendment) Act, 2015 accumulatively provide a temporary measure for the trial of terrorists accused of offences including waging war against Pakistan by a forum already constituted under the law and consistent with a recognised procedure already available for and applicable to personnel of the Pakistan Army.
“The enlargement of the jurisdiction of such a forum is subject to due compliance with an ascertainable criteria constituting a valid classification having nexus with the defence of Pakistan and does not abrogate, repeal, or substantively alter the salient features of the Constitution,” says the verdict.
The court held that the provisions of the 21st Constitutional Amendment as such are intra vires of the Constitution. “The provisions of the Pakistan Army (Amendment) Act, 2015, are not ultra vires of the Constitution”, the verdict maintained.
The court ruled that the decision to select, refer or transfer the case of any accused person for trial under the Pakistan Army Act, 1952, as amended is subject to a judicial review both by the High Courts and by this court inter alia on the grounds of coram-non-judice, being without jurisdiction or suffering from mala fides including malice in law.
“Any order passed, decision taken or sentence awarded under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are also subject to judicial review by the high courts and this court, inter alia, on the grounds of being coram-non-judice, without jurisdiction or suffering from mala fides including malice in law,” says the verdict.
The court held that the response of the state appears to be proportionate and targeted focusing on terrorists known or claiming to be members of a group waging a war against Pakistan in the name of religion or sect, rather than looking towards Article 232, which would have adversely impacted the fundamental rights to a large expanse of the population and seriously curtailed the jurisdiction of the courts.
The court noted that during the course of arguments, some reference was made to the public international law and international commitments made by Pakistan.
The court observed that it is for the federal government to ensure that the course of action undertaken by them does not offend the public international law or any international commitment made by the state, which may have adverse repercussions for Pakistan.In view of the above, all the instant constitutional petitions are liable to be dismissed.