Justice cannot be put aside while dealing with terrorist cases, says SC judge
6/17/2015

ISLAMABAD: A Supreme Court judge observed on Tuesday that justice ought not to be terrorised by putting it aside when dealing with the cases of terrorists.

The observation was made by Justice Asif Saeed Khosa when senior counsel Hamid Khan, representing the Lahore High Court Bar Association and the Lahore High Court Bar, argued that the functions of military courts established to try hardened criminals were not judicial, but executive, in nature.

Hamid Khan was arguing before a 17-judge full court, headed by Chief Justice Nasir-ul-Mull, hearing petitions challenging the appointment procedure of superior court judges under the 18th Amendment and the establishment of military courts under the 21st Amendment.

When the counsel said that the military courts were required to meet the minimum standard of fairness like presentation of plea by the accused and to rebut the evidence led against him by producing defence witnesses, the court asked Attorney General Salman Aslam Butt to submit trial record relating to the award of death sentence to six militants by the military courts.

But the AG said their cases might come in appeal before the court and, therefore, it was not prudent to place the same before it.

Referring to the minimum standards, Justice Khosa cited a news report which stated that the army chief had approved the death sentence awarded to the six militants. He expressed his surprise and asked would an officer junior to the army chief still be able to undo the sentence in appeal when his superior officer had approved it.

The chief justice wondered whether the military courts were successfully given protection under the 21st Amendment.

Hamid Khan referred to an ICJ (International Commission of Jurists) report that discussed the constitution as well as the power of the judiciary to examine the vires of the 21st Amendment and reminded that Pakistan was a signatory to international treaties to uphold fundamental rights.

But Justice Jawwad S. Khawaja expressed resentment over the report and observed that people of different countries had come forward and made remarks against `our criminal system of justice` and asked the counsel to avoid referring to the international conventions.

`We do not like the disparaging remarks made against our system of justice. We cannot allow international treaties to dictate our local laws,` Justice Khosa said.

He regretted that the preamble of the 21st Amendment referred to the tragic incident of the Army Public School, in which a number of children were killed by militants, only to make a parallel judicial system by wrongly putting the entire blame on the judiciary in convicting the terrorists.

Justice Ejaz Afzal wondered whether the signatories to international treaties had ever adhered to these covenants also.

Hamid Khan said time had come that courts defined the parameters of the basic structure and salient features of the constitution so that it could become a touchstone for determining the vires of future constitutional amendments.

He argued that there was no place for military courts under the constitution because the courts established under the constitution and the laws framed there under could not co-exist with the military courts.

Even Article 245 of the Constitution under the Seventh Amendment dealing with the functions of the armed forces did not provide for the establishment of military courts on the pretext of acting in aid of the civil power, the counsel said, adding that the constitutional bar created under the 21st Amendment could not stand in the way of the Supreme Court or high courts in examining the constitutionality of the setting up of military courts.

Hamid Khan argued that it was a settled proposition of law that the constitution and its provisions had to be read as an organic whole. Any amendment that interfered with the possibility of harmonious construction of the constitutional provisions was liable to be struck down, he said.

`The entities that are performing adjudicatory tasks but do not find their place in the constitution will thus indirectly be coram non judice (illegal from the beginning),` the counsel said, adding that the military courts could not be described as courts or tribunals dispensing justice.

The 21st Amendment is a law which is reactive in nature and has been enacted to meet a situation that has arisen primarily due to the failure of the executive to curb the menace of terrorism in the country. The courts in Pakistan cannot be saddled with the burden or blame of the failure of the executive branch to apprehend, investigate or prosecute the terrorists.

The answer to such inadequacies or incompetence on the part of the executive and its intelligence agencies, the counsel argued, was not to deprive the civilians of their fundamental rights of equality, fair trial and due process.

Justice Ejaz Afzal stressed the need for drawing a line of distinction and asked when every institution had its own domain of expertise like the armed forces which were trained in a particular field would it be possible for parliament to frame a law tomorrow for appointing the army chief as chief justice and the latter taking over as commander in chief.

Published in Dawn