'Who controls the special courts?'
Judges ask the state to explain who shall run the administrative, judicial control of courts.
KARACHI:
A three-member bench of the Sindh High Court asked the provincial government on Wednesday to let the court know who shall have the administrative and judicial control of all courts, including Special Courts.
The Anti-Encroachment Act and hence the Special Courts (anti-encroachment, terrorism and accountability) have been challenged in court after a complaint by an accused turned into a constitutional petition. Two teachers and two students of the Jamia Islamia Ziaul Quran were detained at a police post of the Bin Qasim police station on December 25, 2010 and were then handed over to the Anti-Encroachment police station, Bin Qasim.
The accused were produced before Judicial Magistrate, District Malir, the next day and were remanded to judicial custody. Their case was not proceeding because the special courts were not constituted by then and the case could only be heard in those courts. The accused then moved the Sindh High Court complainant cell.
The matter was placed before Justice Amir Hani Muslim (now elevated to the Supreme Court) who had observed, "How are the police exercising powers under the Anti-Encroachment Act without the required court being established?"
On Tuesday, an extended bench comprising Chief Justice Mushir Alam, Justice Gulzar Ahmed and Justice Faisal Arab also appointed three senior lawyers and former judges Rasheed A Razvi, Mushtaq A Memon and Anwar Mansoor Khan - in his capacity as the SHC Bar Association president and as amicus curiae (friends of the court) - and asked the state to file its comments.
The comments stated that after the anti-encroachment bill was passed into a law, there was a need for an amendment in Sections 2 and 26. Appointing a retired judge to head a Special Court, Anti-Encroachment, was deemed necessary, it was submitted. Section 26 the act reads, "A Special Court shall consist of a Session Judge appointed by the government after consultation with the Chief Justice of the High Court." The amendment sought the following substitution: "A Special Court shall consist of a retired Session Judge to be appointed by the government." The consultation with the High Court Chief Justice was deleted under the amendment, excluding the control of the judiciary over the special court.
The appointment of a retired judge was defended on the grounds that the sitting District and Session Judges are already working in difficult circumstances and have no time to head special courts. The amendment was introduced with a bona fide intention assuming that a retired judge has expertise and could carry out the task with undoubted integrity. The enactment of a law or amendment is the function of the legislature and that is also done in the case of the anti-encroachment law, according to the state.
The court, taking notice, asked the Sindh Advocate-General Abdul Fateh Malik to explain how the government decided to lessen the role of the High Court Chief Justice in the Special Courts because in Mehram Ali's case, it was held that the superior judiciary will solely have both administrative and judicial control over all courts including special ones, whether they are terrorism or accountability courts.
A three-member bench of the Sindh High Court asked the provincial government on Wednesday to let the court know who shall have the administrative and judicial control of all courts, including Special Courts.
The Anti-Encroachment Act and hence the Special Courts (anti-encroachment, terrorism and accountability) have been challenged in court after a complaint by an accused turned into a constitutional petition. Two teachers and two students of the Jamia Islamia Ziaul Quran were detained at a police post of the Bin Qasim police station on December 25, 2010 and were then handed over to the Anti-Encroachment police station, Bin Qasim.
The accused were produced before Judicial Magistrate, District Malir, the next day and were remanded to judicial custody. Their case was not proceeding because the special courts were not constituted by then and the case could only be heard in those courts. The accused then moved the Sindh High Court complainant cell.
The matter was placed before Justice Amir Hani Muslim (now elevated to the Supreme Court) who had observed, "How are the police exercising powers under the Anti-Encroachment Act without the required court being established?"
On Tuesday, an extended bench comprising Chief Justice Mushir Alam, Justice Gulzar Ahmed and Justice Faisal Arab also appointed three senior lawyers and former judges Rasheed A Razvi, Mushtaq A Memon and Anwar Mansoor Khan - in his capacity as the SHC Bar Association president and as amicus curiae (friends of the court) - and asked the state to file its comments.
The comments stated that after the anti-encroachment bill was passed into a law, there was a need for an amendment in Sections 2 and 26. Appointing a retired judge to head a Special Court, Anti-Encroachment, was deemed necessary, it was submitted. Section 26 the act reads, "A Special Court shall consist of a Session Judge appointed by the government after consultation with the Chief Justice of the High Court." The amendment sought the following substitution: "A Special Court shall consist of a retired Session Judge to be appointed by the government." The consultation with the High Court Chief Justice was deleted under the amendment, excluding the control of the judiciary over the special court.
The appointment of a retired judge was defended on the grounds that the sitting District and Session Judges are already working in difficult circumstances and have no time to head special courts. The amendment was introduced with a bona fide intention assuming that a retired judge has expertise and could carry out the task with undoubted integrity. The enactment of a law or amendment is the function of the legislature and that is also done in the case of the anti-encroachment law, according to the state.
The court, taking notice, asked the Sindh Advocate-General Abdul Fateh Malik to explain how the government decided to lessen the role of the High Court Chief Justice in the Special Courts because in Mehram Ali's case, it was held that the superior judiciary will solely have both administrative and judicial control over all courts including special ones, whether they are terrorism or accountability courts.