Not army’s job to play judge, says SC

• Judges say unfair to blame judiciary for delay in prosecution of terror cases
• Say weak prosecution, civil administrations’ incompetency to rein in terrorism results in cases’ delay

Judges of the Supreme Court on Thursday observed that it was unfair to blame judges over delays in prosecuting terror cases, stressing that the government departments were responsible for the prolonged cases, and that it was not the army officials duty to assume the role of judges.

“Do not blame judges,” Justice Asif Saeed Khosa, who is part of the 17-member larger bench, told the government lawyer during the hearing of petitions against the 18th and 21st constitutional amendments.

Challenging the establishment of military courts, the bar associations claimed before the Supreme Court that the 21st Constitutional Amendment was passed by parliament allegedly under pressure from the military high command.

The superior bars have requested 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 judiciary and therefore the jurisdiction of Court Martial (Military Courts) should not extend to civilians.

“It is unfair to say that terrorism the country exists due to judges,” Khosa said during Thursday’s hearing, adding that the delay is a failure of the prosecutors. Responding to Khosa’s comments, counsel for the federal government Khalid Anwar said that it is the failure of civilian administration that terrorism is not being controlled. “The country needs to get rid of terrorism; therefore, the army should be backed for this purpose,” Anwar said.

Agreeing with Anwar, Justice Mian Saqib Nisar said that the havoc of terrorism unleashed upon the country needs to be combated and if the civilian administration does not have the capacity to fight it and someone wants to take responsibility for it, they should be supported. “We should provide relevant tools to those fighting against terrorism,” Justice Saqib said.

However, another member of the 17-judge bench, Justice Qazi Faiz Isa, referred to Article 245 of the Constitution and said it is not an army official’s job to perform duty as a judge.

“Why is the federal government putting burden on army officers to become judges,” Justice Isa asked. He pointed out that the constitution has already been suspended in the Federally Administered Tribal Areas (FATA) under the jurisdiction of the superior courts. To this, Chief Justice Nasirul Mulk asked whether the superior courts can exercise their jurisdiction to examine verdicts given by military courts on the basis of mala fide and how the aggrieved persons can approach the superior courts. However, Anwar opposed the notion that courts have no power to exercise their jurisdiction.

Probing into the matter further, the chief justice asked Anwar to cite a precedent which has allowed civilians to be tried by military courts. The government’s counsel said that Guantanamo Bay is one such place in the United States where military courts have been formed to try civilians.

However, the chief justice responded that Guantanamo Bay was not a good example because people were imprisoned without any evidence and released years later.

Justice Khosa said that like the US, the president of Pakistan should also have the legal power to declare war so that laws are affected. He questioned whether in the US, the president can pass an order, through which a civilian can be tried by a military court.

Anwar argued that the top court has no power to interfere in the functioning of military courts in view of 21st Amendment. He said if the argument is rejected, the Supreme Court has the power to examine the impact of the 21st Amendment but in conclusion, the court should adopt the policy of judicial restraint.

The court then sought a detailed report of killings in terrorism-related incidents and adjourned the hearing till Monday.