ISLAMABAD: The Supreme Court was told that the 21st amendment, which established military courts to try hardened terrorists, had seriously undermined, disturbed and distorted the five broad structures and the scheme of the constitution.

On Wednesday, senior counsel Hamid Khan appeared before the 17-judge full court headed by Chief Justice Nasir-ul-Mulk on behalf of the Lahore High Court Bar Association (LHCBA) and the Lahore Bar Association. The bench was hearing challenges to the 18th and 21st amendments.

According to Mr Khan, the five broad structures of the Constitution are the trichotomy of power; the separation of the judiciary from the executive; independence of the judiciary as an organ of the state; access to justice for citizens in terms of enforcement of fundamental rights; and, fair trial and due process guaranteed to citizens under the Constitution.

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He argued that the 21st amendment had disturbed these broad structures and affected 12 different provisions of the Constitution.

These include Article 2A (independence of the judiciary); Article 8(1) and (2) that deem all laws infringing upon the rights of citizens void; Article 9 (protects the life and liberty of all citizens); Article 10 (provides protection against unlawful arrests etc); Article 10A (ensures fair trial); Article 25 (enshrines equality and equal protection of law); Article 175(3) (separation of judiciary from the executive), affecting the enforcement of the fundamental rights under Article 184(3), which also affects the appellate authority of the Supreme Court under Article 185; Article 190, which requires the authority to come in aid of the apex court; Article 199(3), which empowers the high court to issue writs in relation to the enforcement of the fundamental rights; Article 245 relating to the functions of the armed forces to act in aid of the civil powers as well as the Part 1(3) of the First Schedule and Item 55 of the Fourth Schedule.

Tracing its history, Mr Khan said military courts were not something new in Pakistan. “Our past is replete with such courts, either under martial law, special circumstances and even under democratic governments.”

The first time military courts were introduced in Pakistan was in 1953 during the anti-Ahmedi riots in Lahore, whereas the second such occasion was Oct 1958, when the first martial law was declared on the night between Oct 7 and Oct 8 and remained in existence for four years.

The third time such courts were introduced was on March 25, 1969, when Gen Yahya Khan declared martial law that remained in force until Dec 20, 1971.

Military courts remained operative until April 21, 1972, under a civilian martial law administrator and a large number of trials were held during the period.

The martial law, as well as the military courts, were validated by the judiciary under the 1972 Asma Jilani case, but with the caveat that the high courts will have a limited power of judicial review against the sentences awarded.

But Mr Khan said that he could not recall any such review, except one in the Balochistan High Court. Even then, it was not reported and Justice Marri and Justice M.A. Rashid, who presided that bench, had to pay the price.

In April 1977, the military courts were established for a fourth time when a mini-martial law was clamped on Lahore, Karachi and Islamabad. However, the Lahore High Court struck it down while deciding the case of Darvesh Mohammad Arabi.

But the longest and the most repressive period in our history was when Ziaul Haq clamped martial law for eight long years and military courts tried a large number of political workers, mediapersons and journalists who suffered long jail terms.

The next effort was made in 1998, when the Pakistan Armed Forces Acting in Aid of Civil Power Ordinance 1998 was introduced on Nov 20. The ordinance was applied in certain parts of Sindh where the armed forces were called under Article 245 of the Constitution.

But the ordinance had provided a special section dealing with appeals against the trials conducted by the military court – a provision missing in the 21st amendment.

In 1998, the counsel argued, the Supreme Court made an observation in the Mehram Ali case that any court beyond the superintendence of the high court will be unconstitutional.

In 1999, a nine-judge bench of the Supreme Court struck down military courts in the Sheikh Liaquat Hussain case. This judgment is the most relevant in relation to the 21st amendment since the notion that the judicial system has failed to deliver was adequately addressed in the Sheikh Liaquat Hussain case, the counsel argued.

Published in Dawn, June 4th, 2015

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