ISLAMABAD: By a majority of 11 to six, the Supreme Court affixed on Wednesday the seal of approval to the setting up of nine special courts manned by military officers to try hardened militants.

With the announcement of the judgement, the April 16 stay granted by the Supreme Court on the execution of six militants, as well as all subsequent executions, has also been lifted.

Since the stay has been lifted, the sentence for execution given by military courts will be carried out from now on, said Special Adviser to the Prime Minister on Law Aushtar Ausaf while talking to Dawn soon after the court issued the verdict.

The judgement, which was declared as “historic” by none other than Prime Minister Nawaz Sharif in his address to parliament, was announced in a packed-to-capacity courtroom No 1 by Chief Justice Nasir-ul-Mulk himself. Justice Dost Mohammad Khan was beside him.

“In view of the respective opinions, by a majority of 14 to three the constitution petitions challenging the 18th Amendment Act are dismissed, while by a majority of 11 to six the constitution petitions challenging the 21st Amendment and the Pakistan Army Act are dismissed,” said the chief justice while reading out a one-page order.

The amendments were made to the constitution through the 21st Amendment and to the Pakistan Army Act 1952 to establish military courts to try hardcore terrorists soon after the massacre of children in Peshawar’s Army Public School.

The judgement was issued after over five months of hearing of the challenges to the 18th and 21st amendments. The court was to determine whether the 1973 Constitution features certain salient or basic structure that cannot be touched even by parliament.

The judges who differed with the majority judgement authored by the chief justice are: Justices Jawwad S. Khawaja, Asif Saeed Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Dost Mohammad Khan and Qazi Faez Isa.

Justice Mian Saqib Nisar and Justice Umar Ata Bandial wrote additional notes defending the parliament’s right to amend the constitution.

The SC verdict had testified to the failure of the criminal justice system of the country, said former deputy attorney general Raja Mohammad Irshad, who also pleaded the cases of intelligence agencies before the Supreme Court in the past.

He said ground realities demanded that hardened militants who considered themselves above the law and believed that no court of the land could try and punish them should be brought to justice through military courts.

These militants were committing heinous crimes in broad daylight, but the long arm of the law could not reach them, he said, adding that now the military courts could punish them and restore the confidence of the common man.

REVIEW PETITION: The Supreme Court Bar Association has called a meeting on Aug 12 to consider filing a review petition against the majority judgement in the 21st Amendment case in the Supreme Court, according to SCBA Secretary Chaudhry Mohammad Maqsood Ahmed.

But he said that it was encouraging that after a long time judges had spoken their minds freely by writing dissenting notes instead of giving a unanimous judgement.

In the majority judgement, the chief justice held that there was no limitation, express or implied, on the powers of parliament to amend the constitution and the amendments brought about in exercise of such power were not liable to be challenged on any ground whatsoever before any court.

Since the Supreme Court lacked jurisdiction to strike down any amendment in the constitution, it was not necessary to examine the grounds on which the 18th and 21st amendments had been challenged, the verdict explained.

It also held that neither the basic structure theory nor the Objectives Resolution (OR) of the constitution could be made a ground to annul any amendment to the constitution.

“It will be wise for the court to leave the determination of the question regarding political mandate to the ‘people’ rather than engaging in it as it is purely a political question,” the judgement said, adding: “There is also no divide between ‘legislative powers’ and ‘constituent powers’ of the parliament in the constitution. The parliament, under the constitutional structure, has both legislative and constitutive powers.”

Referring to the arguments that the OR represents the will of the people and the parliament is not empowered to make such amendments in the constitution as are in conflict with the declarations made in the OR, the judgement explained that undoubtedly the will of the people was expressed through their representatives in parliament. But the will of the people is declared in the preamble of the 1973 Constitution in these words: “Now, therefore, we, the people of Pakistan…Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this constitution.”

This declaration of “we, the people of Pakistan” is neither a part of the OR as it was passed in 1949 nor as preamble to the constitution of 1956 and 1962. Though Article 2A (OR) has since been acknowledged and accepted as substantive part of the constitution, it does not, however, represent the will of the people, the judgment explains.

Justice Sheikh Azmat Saeed declared the provisions of the 21st Amendment as well as the PAA as intra vires (in accordance with) the constitution and held that the 21st Amendment provided a temporary measure for the trial of terrorists accused of offences, including waging war against Pakistan by a forum already constituted under the law and consistent with a recognised procedure already available for and applicable to personnel of the Pakistan Army.

“The enlargement of the jurisdiction of such forum is subject to due compliance with an ascertainable criteria constituting a valid classification having nexus with the defence of Pakistan and does not abrogate, repeal, or substantively alter the salient features of the constitution,” he observed.

Justice Saeed, however, held that the constitution contained a scheme reflecting its salient features which defined the constitution.

Such features are obvious and self-evident upon a harmonious and holistic interpretation of the constitution. The features ascertainable from the constitution included democracy, parliamentary form of government and independence of the judiciary, the judgement said.

It said the amendatory powers of parliament were subject to implied limitations. The parliament, in view of Articles 238 and 239, is vested with the power to amend the constitution as long as the salient features are not repealed, abrogated or substantively altered.

Justice Saeed said the apex court was vested with the jurisdiction to interpret the constitution in order to ascertain and identify its defining salient features. It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the salient features has been repealed, abrogated or substantively altered.

ADDITIONAL NOTES: In his additional note, Justice Saqib Nisar explained that the 21st Amendment had been expressly limited to remain in force for a period of two years only in the hope and expectation that by that time the existential threat being faced by the country would have been resolved. Thus this is explicitly a temporary provision intended to meet a specific crisis. It is not intended to remain a part of the permanent structure of the constitution.

He also cited judgments from the United States and said that due deference must be accorded to the executive for and in relation to the war against terrorism. He asked where the amending power should vest: in the hands of an unelected judiciary even though acting in good faith, or the chosen representatives of the people. “As I hope is made clear by what has been said above, my answer is: the latter and not the former,” he said.

Likewise, Justice Umar Ata Bandial explained in his additional note that the 21st Amendment had accordingly lawfully extended trial under the PAA of terrorists who are unlawful combatants.

Published in Dawn, August 6th, 2015

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