6 January 2014 shall forever be etched in our collective concise as a sad day when we sold our souls to the devil. Senator Raza Rabbani appeared heartbroken on the floor of the assembly as he shed tears for the assembly taking its last breath “Perhaps, I never felt ashamed as much in my life as I did feel today,” he said adding that he voted in favor of the bill on behalf of his party and was free to decide his future course of action. The amendment received 14 votes more than the required 2/3 majority. The JUI-F, PTI and the Jamaat-e-Islami abstained from voting for or against the bill today, commenting on the reason not to vote Maulana Fazl said, “We avoided committing a sin today by abstaining from voting”. The breakfast diplomacy favored by Nawaz Government to get political backing of their unpopular decision worked seamlessly this time too as politician voted in favor of the notorious bill.
The consideration of constitutional, legal and political complexities that might arise thereof are thrown at the back burner citing difficult situation. The principal of Salus populi suprema lex esto (“The welfare of the people shall be the supreme law) has once again been used to pass arbitrary laws citing necessity.
Since the time of Dosso case (State vS. Dosso P L D 1958 SC (Pak.) 533) Pakistan has been embroiled in the power tussle between democracy and dictatorship. Justice Munir who also authored the Maulvi Tamizzudin judgment in Federation of Pakistan vs. Maulvi Tamizuddin (P L D 1955 FEDERAL COURT 240) shall forever bear the burden of letting in dictatorship and encouraging military intervention in politics. The legal mire that ensued following the judgment has not abated. The continuous derailment of democracy has greatly affected the confidence of the masses on the political and democratic forces
In the past too, parallel justice system were created that were later termed unconstitutional. In Mehram Ali versus Federation Pakistan (PLD 1998 SC 1445), it was held that no parallel legal system can be constructed that bypasses the operation of the existing regular courts.
Chief Justice Irshad Hasan Khan in the judgment observed:
I would add a note of caution that sacrifice of justice to obtain speed disposition of cases could hardly be termed as “justice”. A balance ought to be maintained between the two commonly known maxims, “justice delayed is justice denied” and “justice rushed is justice crushed”. I do not suggest that speed and efficiency ought not to be ultimate measure of a Court but it should not be at the expense of justice.
Following the judgment, the special appellant tribunal was disbanded and the appellant jurisdiction was reverted back to the High court. Probably the legislators who were reluctant to pass the amendment on the eve of Zulfiqar Ali Bhutto’s Birth anniversary had forgotten the fact that even during the government of Zulfiqar Ali Bhutto summary military courts were established , which was challenged before the Lahore and Sindh High courts, in cases namely Darvesh M. Arbey vs.Federation of Pakistan (PLD 1980 Lahore 206) and Niaz Ahmed khan vs. Province of Sindh (PLD 1977 Karachi 604) and were declared unconstitutional by the superior judiciary. In all these cases it was demonstrated that the civil authorities as well as the security forces could not act outside the parameters and limits enshrined in the Constitution.
The constitutional amendment to establish military courts is in direct violation of the trichotomy of power as envisaged under Article 29 and supremacy of Civil court system as enshrined in Article 175 , 184(3), 203 respectively.
The land mark judgment of Sh. Liaquat Hussain and others v/s Federation Of Pakistan through ministry of law and justice (P L D 1999 Sc 504) Justice Ajmal Mian took a firm stand against the establishment of military courts and termed them unconstitutional. The judgment formulated guideline to help executive in controlling the Volatile Karachi situation. Had the government acted upon the guideline and ensured compliance the situation would have been much different today. History has time and again taught us that expansion of military discipline beyond its proper domain carries with it a threat to liberty and civil rights. Justice Ajmal Mian opines that “the Military Courts ought never to exist where the Civil Courts are open and performing their functions properly nor should they be obstructed in the proper exercise of their jurisdiction by replacement thereof.”
By virtue of constitutional amendment bill 2015 the government will establish military courts which are to function from January 15th 2015 to January 14 2017. The parliament has also approved an ordinance titled Pakistan Army Act (Amendment) Ordinance 1952, which refers to “extra ordinary situation and circumstances” which demand “special measures for speedy trail” of certain terrorism related offences. In total four pieces of legislation have been approved, comprising two ordinances and two amendment bills. According to government official these speedy courts shall be reserved for the “jet black terrorist”, a laughable term indeed. Who will define who is a jet black terrorist and who isn’t when the law doesn’t define the term jet black? The military court summary proceeding can order execution on the gist of the evidence. The accused will be denied due process and fair trial, a fundamental right and a direct violation of Article 5 of the constitution of Pakistan.
The government is clueless on how to curb the tide of terrorism by first creating ATA them over throwing it by creating more courts this time military court. The state has played its card very carefully this time introducing an amendment in the constitution to minimize the chances of judicial intervention. No judicial activism can be expected from the Supreme court this time round. The doctrine of basic structure seems to have no takers from the proponents of “difficult time call for tougher laws”. Those who look up to American jurisdiction citing post 9/11 measures taken by the Bush administration, in Hamdan V Rumsfeld lies the answer. The Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.
In his book “a judge speaks out” former chief justice Mr. Justice Ajmal Mian quotes an interesting incident after the military take over on 12 October 1999 Prime Minister Nawaz Sharif was put on trial. When his lawyer came to meet him in jail he told the ex premier that had the military court not be held unconstitutional by the Supreme Court he would have been standing trial at the same courts. To this Mr Nawaz admitted that it was his mistake to establish military trial for the civilian. History has an uncanny habit of repeating itself Mr Prime minister.
Advocate Javeria Younes: a social activist and legal researcher who endeavors for an egalitarian society free from torture. Her research titled “Custodial Torture Its Ramifications And Failure Of Institution” has been published under the auspice of Asian Human Right Comission(AHRC).She can be reached at javeria.younes@live.com
