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Pakistan Supreme Court gives nod to military courts

Islamabad - CJ says the court did not have power to strike down constitutional amendments.

In a landmark judgment, Supreme Court of Pakistan on Wednesday dismissed by an 11-6 majority a slew of petitions against establishment of military courts and also upheld 18th Amendment (14-3) that transferred most powers to provinces.
The apex court, in an 11-6 ruling, dismissed petitions against 21st constitutional amendment wherein military courts have been established to try terrorism cases.
A 17-judge full bench also dismissed petitions against the incumbent procedure of appointment of judges in a wide 14-3 decision.
Announcing the judgement, Chief Justice Nasirul Mulk said, "In view of the respective opinions by a majority of 13 to 4 these constitutional petitions are held to be maintainable."
In his detailed judgment the chief justice said the court did not have the power to strike down constitutional amendments made by the elected parliament.
But he said the decision to send a case for trial by military court and "any order passed or decision taken or sentence awarded" could be subject to judicial review in a normal court.
On January 28, a three-judge bench accepted pleas against 21st constitutional amendment for regular hearing and sought concise statements from federal and provincial governments.
Later on, a 17-judge full court of the Supreme Court, headed by Chief Justice Nasirul Mulk, clubbed the 18th and 21st constitutional amendment cases and heard the arguments for several weeks.
During lengthy legal battle, the Supreme Court examined petitions challenging the procedure of judges' appointment under the 18th Amendment and the establishment of military courts under the 21st Amendment to try militants in the wake of last year's Peshawar school massacre.
After intense legal wrangling, the apex court examined (i) whether the constitution has a basic structure or not; (ii) if it has a basic structure then whether a constitutional amendment can be struck down on the basis of it; and (iii) whether the parliament has the power to alter the basic structure of the constitution.
The verdicts were widely acclaimed. However, former Supreme Court Bar Association president Kamran Murtaza said: "It's a very disappointing verdict by the apex court. The court just upheld the doctrine of necessity. We are going to file a review petition against this judgement."
Murtaza and another lawyer Asma Jehangir had earlier this year petitioned against the establishment of military courts on behalf of the SCBA.
Pakistan is plagued by a 'foreign-funded' Taleban insurgency, sectarian violence and militancy.
Military courts have heard at least 100 militants' cases and passed judgement in at least 27, the law ministry said in June. The military published the names of six men sentenced to death in one case.
"The six men convicted by military courts whose executions were stayed by the Supreme Court will now go ahead," Minister of State for Law Ashtar Ausaf Ali told media after the judgment.
Critics allege the government handed the military too much power and there are few signs of reform.
"Ceding space to the military isn't the answer. Parliament can't pass the buck for creating a functioning criminal justice system," said Saroop Ijaz, a lawyer who represents international rights body Human Rights Watch.
"There's been no movement on reform. When the military courts lapse, the criminal justice system will still be broken."
news@khaleejtimes.com
(With inputs from Reuters)