ISLAMABAD: A Supreme Court judge questioned on Wednesday whether any regulation was ever issued by the president to extend the amendment to the Pakistan Army Act 1952 to the Federally Administered Tribal Areas (Fata).

“Unless the president extends the law, whether the act of the parliament can be extended to the Fata area where a military operation is going on,” Justice Dost Mohammad Khan wondered.

A 14-judge full court, headed by Chief Justice Nasir-ul-Mulk, is hearing petitions challenging the appointment procedure of superior court judges under the 18th Amendment and the establishment of military courts under the 21st Amendment.

Also read: SC seeks details of 5 convicted by military courts

Justice Dost Mohammad also asked senior counsel Abid Zuberi, representing the Sindh High Court Bar Association which has also challenged the 21st Amendment, whether the persons arrested in the operational area could be brought for trial in the military courts unless the president extended the act to Fata.

The counsel said the act had not been extended to the tribal area where the military operation was in full swing.

Justice Asif Saeed Khosa said that while going through the act he did not see any ouster of the jurisdiction of the Supreme Court or the high court not having a judicial review over the proceedings in the military courts established to try hardened criminals.

“Seeing the lot of issues being left out unattended, may be the intention of legislators was to have the superior judiciary the jurisdiction over these matters,” he observed.

The bench recalled that appeals against the decisions of the Field General Court Martial by ordinary military courts did come to the Supreme Court in normal routine which suggested that the right of appeal must be kept intact.

Counsel Abid Zuberi said if the Supreme Court came to the conclusion that the 21st Amendment was not ultra vires of the constitution, it should at least consider providing protection to the accused being tried by the military courts by safeguarding his fundamental rights unless he was proved guilty of terrorism.

He argued that after the amendment to the army act there was not need to make any constitutional amendment in the form of 21st Amendment. He said parliament did not follow the procedure laid down in Article 239 (1 and 2) of Constitution because the 21st Amendment was not passed by a two-thirds majority. All those parliamentarians who voted in favour of the amendment did not do it of their freewill, rather were compelled to do so on the directions of their party heads.

When Justice Khosa asked about any empirical data to prove the contention, the counsel referred to a statement of Senator Raza Rabbani who said he had voted against his conscience.

But the chief justice reminded him that Senator Rabbani had voted in favour of the amendment.

Abrar Hassan, counsel for the Pakistan Bar Council, argued that instead of striking down the amendment, the court should find out a solution by referring the matter back to parliament as was done in the case of 18th Amendment.

He said the PBC was against the establishment of military courts because the amendment to Article 175 was against Article 8 of the Constitution. He disagreed with Hamid Khan’s proposal that the court should lay down the parameters for basic structure and said the danger lied under the basic structure theory and it would bind the future generation. “The constitution is a reflection of society,” he argued.

Published in Dawn June 18th, 2015

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