ISLAMABAD: The Supreme Court on Tuesday observed that bringing certain matters within the purview of military courts during a democratic dispensation was also dictatorship and the court would not allow it.
The remarks came as the 17-member full bench of the apex court, headed by Chief Justice Nasir-ul-Mulk, resumed hearing in the case filed by different bar associations of the country against the 18th and 21st constitutional amendments.
Continuing his arguments in defence of the 21st Amendment and the constitution of military courts, Attorney General Salman Butt said certain people had been brought within the ambit of military courts. Butt said the military courts had been set up to speed up the trial of terror accused, as 85 percent of terror cases were pending with the civil courts last year.
As per the directive of Chief Justice of Pakistan (CJP) Justice Nasirul Mulk, the attorney general filed the record of trialsgeneral filed the record of trials by the military courts and told the court that all the details of trials had been obtained and would be furnished in the form of a video.
Justice Jawwad S. Khawaja remarked: “If the government can call the army in its aid under Article 245 of the Constitution for fear of a revolution then it could also be done now and there was no need for formation of military courts.”
Justice Asif Saeed Khosa remarked that bringing certain matters within the purview of military courts during democratic era was also dictatorship. “How can we allow it? After 21st Constitutional Amendment it seems as if it still needs some protection. There was no need of 21st Amendment after the military had directed the federal government to make amendments for formation of military courts.”
Justice Dost Muhammad Khan remarked: “The successful operation conducted in Swat was conducted under Article 245 and not under the military courts. If the situation can improve there without formation of a parallel judicial system then the same could have been done here. What was the need for the formation of military courts?”
Butt contended that militants had spilled over to other areas thus demanding a swifter action from the government. Justice Asif Saeed Khosa said when it comes to the defence of the country then the military automatically gets the constitutional cover. “Does it mean the military will also get constitutional cover if it takes over Islamabad and lay siege to the Supreme Court and the President House?”
The attorney general said in the presence of Article 245 (1) no high court could interfere under Article 199 when the army comes in the aid of civil administration. Answering a question of Justice Jawad S. Khawaja, the AG remarked: “Suppose if 500 terrorists gather behind the Margalla hills to attack Islamabad and the high court issues a stay, then will the army follow the high court’s decision?”
He said delivering his speech in Parliament in 1973 the then law minister said the parliamentarians had shut the door for military takeover through the Constitution once and for all.“Even then two dictators came,” remarked the chief justice.
Justice Khosa remarked: “What was the need for amending the Army Act in the presence of Article 245? The preface of 21st Constitutional Amendment says this amendment is aimed at providing constitutional protection to military courts.” The AG said amendment was made for formation of military courts keeping in view the situation of the country.
“India also made a temporary amendment to Article 59 of its constitution; we have also made an amendment. Amendment to the Army Act and 21st Constitutional Amendment were passed by the National Assembly simultaneously. In the Senate the amendment to Army Act was approved first and later the 21st Constitutional Amendment.”
Justice Khawaja asked if the president had not signed it already and added signing by the president first was like signing the decision after the accused was hanged. The CJP remarked if the president had noted the time while signing the amended Army Act.The AG said he would clear all the things on Wednesday. The hearing was adjourned till Wednesday (today)