A matter of rights: Supreme Court bar to challenge military courts

Published: February 1, 2015
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The Supreme Court of Pakistan. PHOTO: AFP

The Supreme Court of Pakistan. PHOTO: AFP

ISLAMABAD: 

The Supreme Court Bar Association (SCBA) has decided to challenge before the apex court the proposed creation of military courts that will try terror suspects.

The independent SCBA will thus become the second bar association after the Lahore High Court Bar Association (LHCBA) to appeal against the move.

The government’s initiative to set up special courts was taken in the aftermath of the attack on the Army Public School in Peshawar last month.

SCBA President Fazle Haq Abbasi told The Express Tribune on Saturday that the association will request the court to strike down the 21st Amendment which is against the very basic structure of the Constitution. There is no guarantee of fair trial in this new legislation, he said.

Earlier on Wednesday, a Supreme Court bench headed by top judge of the country had sought a concise statement from the federal and provincial governments within 15 days while hearing the LHCBA plea against the establishment of military courts.

The apex body of the legal fraternity, the Pakistan Bar Council (PBC), had already announced to become party in this case against the new legislation.

Abbasi explained that the 21st Amendment is diametrically opposed to several articles and provisions of the Constitution including Article 10-A which guarantees fair trial. “The establishment of a military court means there is no fair trial,” Abbasi said, while sharing his own experience of criminal justice system.

It is wrong that judges are not ready to hear cases of terrorists, he said. “The civilian courts gave death sentences to over 8,000 terrorists. Why the government is shy of executing them,” he asked. “There is a need to improve the capacity of police and investigation agencies,” he added. “I served as a judge of Peshawar High Court and heard many cases including those people who have been dubbed as jet black terrorists,” Abbasi said.

He said that SCBA during its meeting on Saturday observed that authorities can speed up the trial of terror suspects by amending the evidence mechanism and enhancing the capacity of police and intelligence agencies. There is a need to make strong the existing Anti-Terrorism Courts (ATCs) coupled with effective prosecution.

LHCBA petition

Hamid Khan, counsel for LHCBA in the case against military courts, while referring to Article 175 of the Constitution, contended before the bench on Wednesday that the new constitutional amendment has undermined the independence of the judiciary as well as separation of the judiciary from the executive.

He also stated that Article 2A and 8 of the Constitution have also been affected through this amendment, which secured the independence of the judiciary as well as the fundamental rights of the citizens. “It will be the first time in 39 years that some laws have been amended to affect the first schedule of the Constitution,” Khan had stated before the Supreme Court bench.

Published in The Express Tribune, February 1st, 2015.

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Reader Comments (16)

  • fm
    Feb 1, 2015 - 4:41AM

    These Bars should be behind the bars they are FOS. They are the people who were throwing rose petals on Punjab Governor’s killers. They fight case for terrorists who a mastermind behind all killings. I thinks the Bars came out of the Bars and gave such statements they should be sent behind the bars for supporting terrorists. Shame on them country is at war army is losing soldiers and they are supporting the terrorits

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  • John B
    Feb 1, 2015 - 5:53AM

    The SC has no jurisdiction to evaluate whether the constitutional amendment is within the scope and spirit of the constitution, since the jurisdiction of constitution is with the people, and the operational rights of the SC is derived from the constitution enacted by people. Well that is now they discuss in constitutional law classes. In PAK, anything goes.

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  • Ussama Yaqub
    Feb 1, 2015 - 7:35AM

    I can understand why lawyers are so upset! Cases and appeals lasting decades means cash flows for years. In-fact Pakistani lawyers are experts at employing every trick in the book to delay cases.

    Now with speedy trials all these acquired “expertise” are at danger of becoming redundant, leaving these bars and their lawyers with significant financial losses.

    Hence we have the beautifully crafted “matter of rights”! What about “rights” of the children at APS? Well dead and poor people don’t need lawyers so why bother about them! They are only looking after they clientele. It’s just good business!

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  • Noreen Lateef
    Feb 1, 2015 - 8:32AM

    Having lost several close friends to terrorists who run around with impunity thanks to lawyers and judges like Kh Sharif, I wish that several lawyers and judges get to buy their usual wares. More power to our brave soldiers and long live Gen Raheel Sharif.Shame, shame, shame on these greedy men in black.

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  • Attorney Tausif Kamal
    Feb 1, 2015 - 8:54AM

    These actions or petitions by the SC and other Bar associations are misguided, missing a very fundamental point in constitutional law. All the judges have taken the oath to defend the Consitition. An amendment, unlike an act of the legislature, when properly passed and enacted in accordance with the procedure laid down in the Constitution itself, becomes the very part and parcel of the Constitution- which the judges are under oath to obey respect .This is because an Amendment like the Constitution represents the sovereign will of the people.

    This sovereign will or the sovereign power of the people are beyond the jurisdiction or scrutiny of the supreme . In this regard the only thing SC can examine is whether this 21st Amendment was duly enacted and passed in accordance with the procedure laid down for amendments in the Constitution.

    Yes, in the case of of any conflict in the provisions of the Constitutions (all amendments and articles in the Constitutions are provisions of the Constitution) the Supreme Court may balance such provisions and give more weight to a particular provision than another provisions, whiich is called the interpretation of the Constitition.

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  • Saim Chaudhary
    Feb 1, 2015 - 9:01AM

    A great step! I just hope people understand that this unconstitutional step is going to hurt the system more. We should fix the judicial system rather than creating a parallel system. All the comments under this article fail to realize how our judicial system was weakened the day this amendment was passed.

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  • A J Khan
    Feb 1, 2015 - 11:07AM

    Bench and bar should promote peace and not make business out of terrorism.

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  • Feb 1, 2015 - 11:29AM

    Fair trial??? Was there ever a fair trial??? Fair trial includes quick and affordable justice without the witnesses and judges being pressured or squeezed.
    A man who wantonly kills innocent humans by suicide bombing, sectarian attacks, target killing, improvised explosive devices, or nighttime attacks in which innocent humans die, of course deserve a fair trial but only when our state has the muscle to enforce it.
    Did Zulfikar Ali Bhutto get a fair trial? What fair trial have the rape, acid, and domestic violence victims got in Pakistan? How come the murderers of PAT, PTI, are not as yet arrested and the killer of Salman Taseer not tried in court? And we unhesitatingly call our country…….the Islamic republic of Pakistan. Salams

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  • T
    Feb 1, 2015 - 12:13PM

    ‘No guarantee of a fair trial’???? Seriously???
    Please tell us of one case that has received a fair trial.. Even self confessed murderer of Governor of Punjab hasn’t been tried and worse now his file has gone missing!!!!

    Back off and let the army now do your job as well. You have been given ample time to prove yourself and all you have managed to do is shower rose petals on self confessed murders… does that sound fair to you??

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  • Sami
    Feb 1, 2015 - 12:35PM

    The only thing the judiciary is concerned with is more perks and privileges. The bars are hands in gloves with them.The failing system is being replaced by military courts who will not take delaying tactics into account and will deliver the verdicts justly and on time.If military courts start handing over judgements in shortest possible time surely the income of lawyers would suffer and this is the main reason for this hue and cry.

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  • parvez gondal
    Feb 1, 2015 - 12:47PM

    instead of feeling embarrassed for failire to provide justice from civilian courts the lawyers are so stupid to protest the correct procedure to deal with the terrorist. It is very obvious the civilian courts have failed to provide justice for the innocent peopleand therefore we have to have a military court system because only the military is not scared of the terrorist. our justice system is so corrupt that the lawyers should feel embarrassed to take this matter to Supreme Court . I don’t understand what is happening in Pakistan.

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  • Parvez
    Feb 1, 2015 - 12:52PM

    If the judicial system had functioned so as to deliver justice……this would never have come up.

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  • Pathloon
    Feb 1, 2015 - 1:16PM

    Military courts are retrograde and will doom the progress of democracy in Pakistan in the long run.

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  • patriot
    Feb 1, 2015 - 2:09PM

    The court has proven once again that it is not there for the people and will bring hurdles in the way of true justice.

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  • abc
    Feb 1, 2015 - 2:11PM

    Why don’t they strike down on the corruption and lawlessness. The thing is that they will only pay attention on something which will help them to facilitate their personal objectives.

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  • Mazhar Khan
    Feb 2, 2015 - 2:33AM

    These lawyers should be sent to 2 years compulsory military training like in Turkey and out of that 1 year should be sent to North Waziristan or Baluchistan and let them face their well wishers BLA and TTP and then brought back to Bar Councils to fight the terrorism cases. The lack of realisation of Army’s sacrifices amounts to treason.

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