ISLAMABAD: Rights activist Asma Jahangir argued in the Supreme Court on Thursday that since an amendment to the Pakistan Army Act (PAA) 1952 through the Act 2 of 2015 and Ordinance 1 of 2015 giving retrospective effect to the trials before military courts were passed subsequent to the 21st Amendment by a simple majority, the PAA was not protected under Article 8 of the Constitution which declared laws to be void if inconsistent with or in derogation of fundamental rights.

A 17-judge full court headed by Chief Justice Nasir-ul-Mulk had taken up petitions challenging the appointment procedure of superior court judges under the 18th Amendment and the establishment of military courts under the 21st Amendment to try hardened terrorists.

Justice Asif Saeed Khosa observed that the president had assented to the 21st Amendment before approving the amendment to the army act which meant that protection to the law was accorded when it was not in existence at that particular time. “It seems the entire exercise is meaningless,” he said.

Legal observers believe that the new outlook that emerged during the discussion in the Supreme Court has raised many questions over the legitimacy of military courts.

Asma Jahangir, representing the Supreme Court Bar Association, argued that the Supreme Court in particular and other superior courts in general enjoyed the right to review the transfer of trials by the federal government which had the authority to refer the cases of any accused to military courts under the amendment to the PAA. She said the outcome of the trial by a military court was subject to judicial review by the apex court.

“I have been attacked by terrorists and loath violence ... always raised voice against terrorism, but we will never approve trial and conviction of an innocent person,” Ms Jahangir said, adding that she interacted with ordinary people who had been expressing their fear that their children might be taken away merely because they grew beard. “We cannot have a rule of jungle,” she said.

Justice Saeed Khosa observed that going through the amendment he had not come across any provision that barred or suggested ouster of jurisdiction of the Supreme Court.

Ms Jahangir said the Supreme Court was the only institution which protected inalienable rights of the people and, therefore, it could intervene by widening the scope of its jurisdiction if parliament made a law that cut deep into the fundamental rights. The role and the jurisdiction of the Supreme Court were wider than what had been enunciated in the constitution, she argued.

“You (Ms Jahangir) want to say that despite the ouster clause in the law, the Supreme Court still has the power to review against violations of the rights,” the chief justice said.

Justice Mian Saqib Nisar asked the counsel whether she wanted the apex court to examine the orders issued by trial courts or the legislative enactment (21st Amendment).

“At least the court should widen its scope to look into the outcome of trials which cut deep into the fundamental rights,” Ms Jahangir said. Different international laws and conventions bar the trial of civilians by military courts.

Justice Qazi Faez Isa asked what role the judiciary should play if tomorrow parliament brings a 22nd amendment by re-introducing slavery or declaring that the protection under Articles 4 and 8 of the Constitution was not available to the people.

“This will then be unfortunate and if the parliament does so, I will ask my colleagues to go to the parliament instead of coming to the apex court,” Ms Jahangir said but hastened to add that the parliament should have a certain level of accountability.

What the parliament had done by bringing the 21st Amendment was obnoxious and let the people down, she regretted. But at the same time, she added, the court could not monitor the parliament. By and large there are many verdicts of the apex court which cannot be called a judgment of wisdom. “We have also been let down by the judiciary and it is this judiciary which gave the concept of honour killings in their judgments,” she argued.

Ms Jahangir suggested that instead of striking down the amendment, the court should interpret it in the light of Articles 4 and 8 of the Constitution.

Tracing the history of introduction of the objectives resolution in the constitution, she recalled that the resolution divided the people on religion and, therefore, should not be considered as the basic structure of the constitution.

The objectives resolution was used against half of the population in the 1980s by a dictator and his lackeys by telling women that their place was within the four walls of their houses. Only a usurper can hold the entire country hostage to the basic structure of the constitution for introducing an amendment to it.

Ms Jahangir suggested to the court to avoid taking the route of examining constitutional amendments on the touchstone of the basic structure and said that if the court decided to do so it would have to reopen all the amendments made to the constitution in the past.

Published in Dawn June 19th, 2015

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