Judges uphold military justice

• SC full bench dismisses petitions filed against 21st Amendment with 11 judges ruling in favour of military courts and six against their establishment
• Apex court also rejects petitions filed against 18th Constitutional Amendment by majority 14-3 votes
• CJP says superior judiciary has the authority to review any ruling of military courts
• Justice Khawaja in his dissenting note says parliament is not supreme authority and it does not have unlimited powers to amend constitution

The Supreme Court of Pakistan on Wednesday rejected all petitions challenging the 18th and 21st Constitutional Amendments and ruled in favour of the establishment of military courts in the country.

A 17-member bench headed by Chief Justice of Pakistan Nasirul Mulk had reserved the verdict on 35 identical applications against the two constitutional amendments on June 27.

The bench dismissed the petitions challenging the 21st Amendment with 11 judges voting to reject the pleas and six in its favour. Petitions challenging the 18th Amendment were also rejected by a majority 14-3 vote.

The verdict was announced by Chief Justice Nasirul Mulk and Justice Dost Muhammad.

While announcing the judgment, Chief Justice Nasirul Mulk said, “In view of the respective opinions recorded above, by a majority of 13 to 4, these Constitution amendments are held to be maintainable.”

“However, by a majority of 14 to 3, the Constitution petitions challenging the Constitution (18th Amendment) Act (Act X of 2010) are dismissed, while by a majority of 11 to 6 the Constitution petitions challenging the Constitution (21st Amendment) Act (Act 1 of 2015) and the Pakistan Army (Amendment) Act (Act II of 2015) are dismissed,” he added.

In a detailed judgement, Chief Justice Nasirul Mulk declared that the superior judiciary has the authority to review any ruling of military courts on grounds of coram non judice (being without jurisdiction or suffering from mala fide).

The chief justice declared that the superior judiciary had the authority to review the government’s selection of cases and refer them for trial under the Pakistan Army Act, 1952. However, he added any order passed, decision taken or sentence awarded shall be subject to judicial review.

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. However, the decision to select and refer the case of any accused for trial under the Pakistan Army Act, 1952, as amended, and any order passed or decision taken or sentence awarded in such trial shall be subject to judicial review on the grounds of corum non judice, being without jurisdiction or suffering from mala fide. With this observation all the petitions are dismissed.”

The ruling by the apex court endorses military courts in Pakistan, which were formed under the 21st Constitutional Amendment and the Pakistan Army Act 1952 for speedy hearing of terrorism cases following the deadly Taliban attack at the Army Public School in Peshawar in December.

The establishment of the military courts was challenged in the pleas against the 21st Constitutional amendment by the Supreme Court Bar Association (SCBA), Lahore High Court Bar Association (LHCBA) and other lawyers’ bodies, which argued that the military courts were an expression of no-confidence on the incumbent judiciary, was a violation of basic human rights and against the basic structure of the constitution.

The apex court had halted the execution of six terrorists handed down the death sentence by military courts and ratified by Chief of Army Staff General Raheel Sharif.

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. It added that the election procedure of minorities under Article 51 should be declared null and void because it makes them second-grade citizens.

The judgement on the 21st Amendment as well as the 18th Amendment will be the last major verdict by Chief Justice Nasirul Mulk as he will attain superannuation on Aug 16.

Over a five-month long hearing on the challenges to the 18th and 21st amendments was wrapped up by the Supreme Court on June 26.

Commenting on the verdict, former SCBA President Kamran Murtaza said he was disappointed by the SC’s verdict. “The court just upheld the doctrine of necessity,” he said, adding that the SCBA will file a review petition against this judgement.

Prime Minister Nawaz Sharif’s Special Assistant for Law Ashtar Ausaf Ali called the decision “another strike against terror”, adding, “it’s a success for the nation.”

He said that the apex court stated that amendments which can change the country for the better can be made to the constitution.

Ausaf said that within the next two years of operation of military courts, remaining institutions will be strengthened. “Prosecution will be improved, evidence collection will be better … Circumstances will improve.”

He also said it is possible these circumstances have not arisen before and do not exist in any other country. “The European Union, the United States and other democracies need to understand that we need to make decisions according to our circumstances … And we know best how to rid ourselves of terrorists.”