Wednesday Aug 05, 2015

SC upholds military courts, rejects pleas against 18th and 21st amendments

ISLAMABAD: The Supreme Court of Pakistan on Wednesday rejected all applications challenging the 18th and 21st Constitutional amendments, ruling in favour of the establishment of military courts in the country.

A 17-member bench headed by Chief Justice of Pakistan Justice Nasirul Mulk had reserved the verdict on the 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 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.

The ruling by the apex court today puts a stamp in favour of 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, the Lahore High Court Bar Association and other lawyers’ bodies, auguring that the military courts were an expression of no-confidence on prevailing judiciary, a violation of basic human rights and against the basic structure of the Constitution.

The apex court had halted the execution of six militant handed down the death sentence by these military.

But today's verdict upholding the establishment of the military courts paves way for terrorism cases to continue to be heard by the military courts and the execution of the six death row prisoners.

Also read: Legal experts hail Supreme Court ruling

Dissenting note

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.

The additional note adds that the election procedure of minorities under Article 51 should be declared null and void because it makes them second-class citizens.

‘SC cannot annul Constitutional amendments’

The apex court later issued a 902-page detailed verdict of the case, written by CJ Mulk himself.

According to the detailed verdict, the Supreme Court of Pakistan does not enjoy powers to annul any Constitutional amendment, even if it contradicts with basic human rights.

Chief Justice Mulk said the Constitution does not give the authority of rescinding Constitutional amendments. He, however, 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.