Court battle: Parliament can curtail fundamental rights, says govt

Federation, provinces back 21st amendment to set up military courts

ISLAMABAD:

Federal as well as three provincial governments on Monday expressed their full and unqualified support to the 21st constitutional amendment, which had led to the formation of military courts for the prosecution of civilians who wage war against the state in the name of religion or sect.

The argument in favour of the amendment is contained in their concise statements submitted before the Supreme Court.

Attorney General Salman Aslam Butt filed before the Supreme Court a 43-page statement in reply to the Lahore High Court Bar Association (LHCBA)’s constitutional petition against the establishment of military courts.



Three provinces – Punjab, Sindh and Balochistan –also submitted their separate concise statements, lending support to the move. The K-P government had already filed its statement, backing the decision.

The federal government claimed that the existing civilian law enforcement structure is inadequate and cannot effectively prosecute, convict and sentence terrorists.

It said at present the prosecutors and witnesses feel threatened and think that they do not have adequate or sufficient protection, adding that there are actual instances where judges, prosecutors and witnesses were threatened or attacked and killed.

The statement said terrorists have no respect for the life and liberty of Pakistani citizens, the Constitution, the courts and the legal system of Pakistan as they do not recognise the state of Pakistan.



“These terrorists deserve a treatment that is different from ordinary citizens of Pakistan,” it argued.

The federation said the 21st constitutional amendment must be seen in the prevailing circumstances and not in isolation and on an ideal plane.

“The terrorist groups want to enforce at gunpoint their ideology…either we accept this and let them Talibanise our society and push us to the dark ages or we rise to the occasion and make Pakistan a democratic state based on the Islamic principles of social justice as visualised by the founder of Pakistan,” it said.

The government said the people have spoken through their elected representatives – for the sake of all those who have sacrificed their lives in this war, for the sake of our children and for the sake of the future of this country – and therefore the instant petitions are liable to be dismissed.

Referring to several judgments of the apex court, the government contended that the courts in Pakistan have never adhered to or followed the doctrine’s basic structure that bars amendments to the Constitution. “In 1985, it was expressly provided that there was no limitation on this power to the parliament in the form of Article 239 (6),” it said.

It said Constitution is a document, which makes up a social and legal contract between citizens and the state. “Over the course of time, it may need to be adapted to adjust to the new realities and circumstances. A Constitution is not cast in stone; therefore, it is called a living Constitution, which can be amended by parliament,” the reply argued.

It contended that even in the United States, the Supreme Court upheld unusual actions that were taken during World War-II and no constitutional amendment has ever been set aside by the US top court.

“In matters such as war, the judiciary has always followed the decision of other coordinated branches of the government,” it added.

The reply argued that the 21st constitutional amendment does not impinge upon the independence of judiciary.

Regarding the enforcement of fundamental rights, the federation said under the Pakistani constitutional dispensation, abridgment of fundamental rights has been recognised in certain circumstances.

“Parliament has the power to pass laws that may abridge fundamental rights; therefore, 21st constitutional amendment may not be set aside on the test of violation of the fundamental rights,” it said, adding that it is time-bound and only cases of certain classes of terrorists are now being forwarded to them.

Published in The Express Tribune, February 24^th, 2015.