Majority verdict: SC rules in favour of military courts
Says the top court can still review any judgment passed by military courts
Supreme Court. PHOTO: AFP
ISLAMABAD:
The Supreme Court upheld the establishment of military courts to try terror suspects in a majority ruling on Wednesday, but ruled that the superior judiciary could still review any judgment passed by them.
A 17-member bench of the top court dismissed petitions challenging the 21st Constitutional Amendment and the Pakistan Army (Amendment) Act (Act II of 2015), which allow the setting up of military courts, after 11 judges ruled against the admissibility of the pleas.
The full bench also dismissed petitions challenging the 18th Constitutional Amendment after a majority vote of 14 against and three in favour of admitting the applications.
While authoring the 88-page verdict, Chief Justice Nasirul Mulk said there are no limitations, ‘express or implied,’ on the powers of parliament to amend the Constitution. He added that 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,” the chief justice noted.
“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 a trial shall be subject to judicial review on the grounds of coram non judice [a legal term used to indicate a legal proceeding carried out outside the presence of a judge], being without jurisdiction or suffering from mala fide,” he added.
Justice Iqbal Hameedur Rehman endorsed the CJ’s views on the matter completely. Eight other judges – namely Justice Sheikh Azmat Saeed, Justice Anwar Zaheer Jamali, Justice Sarmad Jalal Osmany, Justice Amir Hani Muslim, Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Maqbool Baqar – while endorsing CJ’s opinions, issued an additional 181-page note with the verdict.
Justice Bandial, in a separate note, said the Constitution did not prohibit treatment of terrorists and militants as unlawful combatants and enemy combatants, and provided them the opportunity for due process under the law of war. “Such terrorist militants have adequate opportunity to challenge the decision of the executive entrusting their trial to courts martial. They may approach the high courts of the country presided by an independent judiciary to determine such a challenge,” he said.
On the other hand, six other judges – namely Justice Jawwad S Khawaja, Justice Asif Saeed Khosa, Justice Ejaz Afzal Khan, Justice Ijaz Ahmad Chaudhry, Justice Dost Muhammad Khan and Justice Qazi Faiz Isah – opposed the establishment of military courts.
According to Justice Khosa, the petitions challenging the 21st Amendment and Pakistan Army (Amendment) Act were partially allowed. He also maintained that the Pakistan Army (Amendment) Act was declared to be unconstitutional.
“As a consequence of this declaration all the trials conducted and the appeals decided by the military courts deriving authority from the Pakistan Army (Amendment) Act (Act II of 2015) are to be treated as non est and all the judgments delivered by invoking that law are rendered incapable of implementation and execution,” he said.
Justice Qazi Faez Isa said the military being a part of the executive cannot conduct criminal trials of civilians because judicial power can only be exercised by the judiciary.
“All convictions, sentences passed or acquittals made of civilians tried by the military pursuant to the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 are set aside and all such cases to be adjudicated afresh by the Anti-Terrorism Courts,” he said, while calling for all proceedings of civilians pending before the military courts to be transferred to anti-terrorism courts.
Justice Isa added that there were important provisions in the Anti-Terrorism Act, 1997, which if implemented would help to stem terrorism and also ensure the conviction of terrorists.
Published in The Express Tribune, August 6th, 2015.
The Supreme Court upheld the establishment of military courts to try terror suspects in a majority ruling on Wednesday, but ruled that the superior judiciary could still review any judgment passed by them.
A 17-member bench of the top court dismissed petitions challenging the 21st Constitutional Amendment and the Pakistan Army (Amendment) Act (Act II of 2015), which allow the setting up of military courts, after 11 judges ruled against the admissibility of the pleas.
The full bench also dismissed petitions challenging the 18th Constitutional Amendment after a majority vote of 14 against and three in favour of admitting the applications.
While authoring the 88-page verdict, Chief Justice Nasirul Mulk said there are no limitations, ‘express or implied,’ on the powers of parliament to amend the Constitution. He added that 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,” the chief justice noted.
“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 a trial shall be subject to judicial review on the grounds of coram non judice [a legal term used to indicate a legal proceeding carried out outside the presence of a judge], being without jurisdiction or suffering from mala fide,” he added.
Justice Iqbal Hameedur Rehman endorsed the CJ’s views on the matter completely. Eight other judges – namely Justice Sheikh Azmat Saeed, Justice Anwar Zaheer Jamali, Justice Sarmad Jalal Osmany, Justice Amir Hani Muslim, Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Maqbool Baqar – while endorsing CJ’s opinions, issued an additional 181-page note with the verdict.
Justice Bandial, in a separate note, said the Constitution did not prohibit treatment of terrorists and militants as unlawful combatants and enemy combatants, and provided them the opportunity for due process under the law of war. “Such terrorist militants have adequate opportunity to challenge the decision of the executive entrusting their trial to courts martial. They may approach the high courts of the country presided by an independent judiciary to determine such a challenge,” he said.
On the other hand, six other judges – namely Justice Jawwad S Khawaja, Justice Asif Saeed Khosa, Justice Ejaz Afzal Khan, Justice Ijaz Ahmad Chaudhry, Justice Dost Muhammad Khan and Justice Qazi Faiz Isah – opposed the establishment of military courts.
According to Justice Khosa, the petitions challenging the 21st Amendment and Pakistan Army (Amendment) Act were partially allowed. He also maintained that the Pakistan Army (Amendment) Act was declared to be unconstitutional.
“As a consequence of this declaration all the trials conducted and the appeals decided by the military courts deriving authority from the Pakistan Army (Amendment) Act (Act II of 2015) are to be treated as non est and all the judgments delivered by invoking that law are rendered incapable of implementation and execution,” he said.
Justice Qazi Faez Isa said the military being a part of the executive cannot conduct criminal trials of civilians because judicial power can only be exercised by the judiciary.
“All convictions, sentences passed or acquittals made of civilians tried by the military pursuant to the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 are set aside and all such cases to be adjudicated afresh by the Anti-Terrorism Courts,” he said, while calling for all proceedings of civilians pending before the military courts to be transferred to anti-terrorism courts.
Justice Isa added that there were important provisions in the Anti-Terrorism Act, 1997, which if implemented would help to stem terrorism and also ensure the conviction of terrorists.
Published in The Express Tribune, August 6th, 2015.