SC stamps secret military courts


ISLAMABAD: Terrorists convicted by military courts could still be reprieved after a Supreme Court ruling yesterday confirmed their right to judicial review.

This right to review was granted as the court legalised secret military trials and upheld the 18th and 21st amendments in the constitution of the country.

Prime Minister Nawaz Sharif welcomed the ruling, saying the “unusual step” of setting up military courts was necessary to defeat militants.

“This decision will discourage terrorism in the country,” he told parliament.

The ruling could speed up the execution of the six terrorists already sentenced by military courts but it also gives some hope of reprieve as they can now seek review in the regular courts.

This decision was criticised by the legal fraternity which said it validated a parallel judicial system and revived the old ‘Doctrine of Necessity’.

The court failed in its role to ensure fundamental rights of the citizens, lawyers said.

They said they would seek a review of the verdict.

Earlier in the morning, a 17-member Full Court rejected 35 identical appeals against the 18th and 21st amendments with a majority vote.

The apex court dismissed the pleas challenging the 21st amendment with 11 judges voting against them and six in favour.

Petitions against the 18th amendment were also rejected by a majority 14-3 vote.

A two-judge bench – comprising Chief Justice Nasirul Mulk and Justice Dost Muhammad Khan – announced the lager bench decision which had been reserved on June 27.

Judges provided seven opinions and two additional notes on the ruling.

According to the judgment, there are no limitations, express or implied, on the powers of Parliament to amend the constitution and the amendments brought about in exercise of such power are not liable to be challenged on any ground whatsoever before any court.

“As this court lacks jurisdiction to strike down any amendment in the Constitution, it is not necessary to examine the grounds on which the 18th and the 21st Amendments have been challenged,” the verdict read.

The 902-page detailed verdict, written by CJ Mulk himself, said the Supreme Court does not enjoy powers to annul any constitutional amendment, even if it contradicts basic human rights.

However, he added that the apex court would be able to review cases referred to the military courts, their verdicts and the sentences awarded by the martial courts.

The judicial reviews could be carried out on the basis of malicious intent and absence of hearing powers and appropriate forum.

The 21st Amendment, allowing establishment of military courts to try terrorists, was passed in January as part of a crackdown on militancy following a Taliban massacre at the Peshawar Army Public school which left more than 150 people, mostly students, dead.

The six judges who opposed the 21st Amendment and Pakistan Army (Amendment) Act declared the 21st amendment liable to be struck down.

In a 25-page additional note written in Urdu, Justice Jawad S Khawaja said he agrees with Justice Qazi Faiz Esa that it is essential to strike down the 21st amendment.

The SC judge said that Parliament is not the supreme authority, and that it does not have unlimited powers to amend the Constitution.

A law or amendment which contradicts the principles of democracy or conflicts with the independence of the judiciary cannot be part of the powers of elected representatives, read the dissenting note.

Like PM Nawaz Sharif, PPP senior leader Khursheed Shah appreciated Supreme Court’s decision saying it has endorsed the parliament’s decision regarding the establishment of military courts.

Shah, who is also opposition leader in the National Assembly, recalled that his party leader, Asif Ali Zardari, during a meeting with the prime minister had supported the idea of establishing military courts calling it a need of the hour.

But the court judgment has annoyed majority of lawyers who feared military courts would damage the fundamental rights of the citizens enshrined in the constitution.

Over two dozen petitioners, including Pakistan Bar Council and the high court bar associations of Lahore, Karachi and Peshawar, had moved the apex court against the constitutional amendments.

Kamran Murtaza, a former president of the Supreme Court Bar Association and a petitioner in the case, said, “We stated in our petitions that the matter of military courts is not in accordance with the constitution and it is against human rights. It affects the basic structure and independence of judiciary itself.” He said they would seek a review of this judgment.

Parliament has approved the use of military courts for the coming two years, and cases are referred to them by provincial governments.

But some have called for the trials to be more transparent.

The International Commission of Jurists on Wednesday condemned the military courts as “secret, opaque” and in violation of fair trial obligations.

The army announced the first verdicts and sentences from the new courts in April.

Six militants were condemned to death and another jailed for life, all on terrorism charges, though scant details of the offences and trials were given.

The Supreme Court suspended the sentences while it heard the legal challenge to the courts.

Military courts have heard at least 100 militants’ cases and passed judgment in at least 27, the law ministry said in June.

“The six men convicted by military courts whose execution were stayed by the Supreme Court will now go ahead,” Minister of State for Law Ashtar Ausaf Ali told media after the judgment.

There is no public information about the identity of other suspects or convicts, charges or evidence against them, their sentences or appeals.

The military has not responded to repeated requests for comment.

Military courts are empowered to try militant suspects until February 2017.

The government promised to use that time to reform the broken civilian justice system.

Critics say the government handed the military too much power and there are few signs of reform.

“Ceding space to the military isn’t the answer.

Parliament can’t pass the buck for creating a functioning criminal justice system,” said Saroop Ijaz, a lawyer who represents international rights body Human Rights Watch.

“There’s been no movement on reform..

When the military courts lapse, the criminal justice system will still be broken.”

The military is already holding thousands of civilians without trial, according to Supreme Court hearings into missing persons.

It is unclear whether some may face military courts.

“We cannot know what is happening inside those courts, we have no access to them,” said Amina Janjua, an activist for the families of the missing whose own husband was detained 10 years ago.

“Who will know whether the judges’ decision is right and what the proof there was?”

Lahore High Court Bar Association president Pir Masood Chishti was dissatisfied with the decision.

He said the bar would meet soon to decide on moving the apex court to seek review of the verdict as they believed setting up of the military courts would vitiate independence of the judiciary and authority of the constitution, paving way for a parallel judicial system.

Former attorney general Malik Qayyum said it was a pity that military courts were set up through a constitutional amendment.

He said the perception was wrong that ordinary courts had failed to deliver.

He observed that investigation and prosecution were actually responsible for the failure of the criminal justice system by delaying production of witnesses and completing challans.

Instead of setting up military courts, attention should be paid to improvement in these two departments; otherwise, the government would be forced to continue with the military courts on permanent basis at the cost of the existing system, said Qayyum, who is also a former LHC judge.

He noted the apex court has used the doctrine of necessity which had been ‘buried’ through the SC decisions over the last years.

To a question that military courts also exist in United States, he said they were set up through Patriotic Act and not through a constitutional amendment, only for trying the foreign nationals who commit heinous crimes.

Abid Hassan Manto, a senior jurist and ex-president of Supreme Court Bar Association (SCBA), was also not in favour of military courts and observed the dissent of six judges in the decision meant that it would be hard to command due importance among the lawyers for the purpose of reference in law cases.

He added the military courts would hardly be able to protect rights of citizens.

However, well-known Supreme Court lawyer and former SCBA president, Muhammad Akram Sheikh, endorsed establishment the SC decision.

He supported military courts on the grounds of loss of human lives caused by terrorists and hardened criminals and failure of regular courts to rise to the occasion.

Sheikh, who also served as an ambassador-at-large during the first Nawaz Sharif government in 1997, said that independent judiciary is a fundamental part of the basic structure of the constitution, but extraordinary steps become necessary when very foundations of the state are at stake.

He however said the military courts did not provide a permanent solution to the problem, so, it is imperative to improve existing criminal justice system.