17 Member Bench of Pak SC upholds establishment of Military Courts for Terrorism Cases

A 17 member Bench of the Supreme Court of Pakistan, in a majority 11-6 vote, has upheld the establishment of the controversial special military courts in the country for speedy trial of terrorists.

The Bench, headed by Chief Justice Nasirul Mulk dismissed several identical petitions against the 21st constitutional amendment by the Parliament which set up the military courts, which were alleged to be against the “basic structure” of the Constitution.

A total of 31 constitutional petitions were taken up by the court, of which 16 petitions were regarding 18th Amendment the rest were about 21st amendment. In a 14-3 majority vote, petitions challenging the 18th amendment were also dismissed by the bench. Judges provided seven opinions and two additional notes on the ruling.

The 21^st amendment and the Pakistan Army Act, 1952 was adopted n January after the deadly Taliban attack on a military school in Peshawar that killed over 150 people, mostly children.

The prevailing argument for establishment of military courts was that civilian courts are not able to successfully try and convict terrorist suspects since such suspects are able to intimidate witnesses, prosecutors and judges.

In one such case, the Judges would have tea and cookies brought to one of Pakistan’s most feared Islamic militants, Malik Ishaq, during past court proceedings against him. Ishaq was gunned down and killed while being transported in a police van last month.

Due to Ishaq’s fear, scores of Judges and prosecutors had pulled out of almost 200 cases. The Prime Minister had then told the lawmakers in Parliament that he hoped that the decision will discourage terror attacks. “Unusual situations warrant unusual measures,” Sharif said.

The functioning of these Courts was suspended on April 16, after the Court had taken up the petitions. By then, the military courts had awarded death sentence to six accused and life imprisonment to one.

Earlier, Attorney General Salman Aslam Butt contended that while the judiciary has the prerogative of defining the Constitution, it cannot declare null and void a constitutional amendment or law with the single stroke of a pen.

The Court had reserved its judgment of June 26. Read the LiveLaw story here.

Prime Minister Nawaz Sharif welcomed the decision, which is seen as a major victory for his government, but critics and rights activists say it goes against the constitution and civil rights.

The critics however feel that the Government has handed too much power to the military, with 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.

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 judgment."

Kamran Murtaza and Asma Jehangir had earlier this year petitioned against the establishment of military courts on behalf of the SCBA.

The developments in Pakistan come when the Supreme Court of India has reserved its verdict on a challenge to the Constitutional Amendment enabling the constitution of a National Judicial Appointments Commission which has been challenged, among other grounds, as an attack by the Executive and Parliament on the independence of the judiciary which has been judicially recognized as part of the basic structure of the Constitution. Read more news about the NJAC here.

Read the judgment here.