ISLAMABAD: Taking exception to the fact that the judiciary is often blamed for its failure to punish terrorists, a Supreme Court judge on Thursday asked why it was necessary to hand over the “seat of justice” to other institutions to protect future generations from the menace of terrorism.

“Let the justice system remain a justice system,” Justice Asif Saeed Khosa observed. While conceding that the necessary devices and tools should be provided in order to weed out terrorism from the country, he wondered why it was necessary to hand over the “seat of justice” in this regard.

Justice Khosa is part of the 17-judge full court, headed by Chief Justice Nasirul Mulk, which has taken up challenges to the 18th and 21st amendments.

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The observation came when Justice Mian Saqib Nisar supported the contention of senior federal government counsel Khalid Anwar and said the country was faced with an extraordinary situation, since terrorism had wreaked havoc with the economy and the fabric of society. “It is also true that the civilian order has no capacity to thwart the menace [of terrorism], but in this gloomy situation, someone has to do the job to save the posterity by crushing those who used to play football with the heads of our children provided needed weaponry and tool was given.”

Mr Anwar told the Supreme Court that the 21st amendment had restricted its jurisdiction and the apex court ought not to interfere in the trials of the hardened criminals by the military court because it cannot do so.

“The amendment is of a temporary nature – for two years – and was unanimously supported by all political parties in parliament because they agreed that the country was in a state of war which should be waged effectively and agreed to give the armed forces the greatest latitude,” the counsel said.

Judge observes that justice has been suspended for two years under the 21st amendment

If the court struck down the amendment, then tens of thousands of lives would be lost again, as has happened to 30,000 to 50,000 people in the last decade, he said. “I am arguing the case on the basis of conviction, because a war has been waged against the soul of this country and Islam,” the counsel said, adding that this was a bitter pill which had to be swallowed.

“Would the Supreme Court be prepared to accept responsibility in case it struck down the amendment,” the counsel asked.

This led Justice Khosa to say that it was very uncharitable of the counsel to say that terrorism was flourishing because of the judiciary’s failure.

He asked if it was the fault of the judiciary that suicide bombers blew themselves up inside the cantonment areas, that too after crossing three or four security tiers, or was it the fault of the judges that the Army Public School children could not be saved despite a prior warning.

The only purpose of the 21st amendment is speedy trials, but it is not the judges but rather a weak prosecution and lack of evidence which has led to delays in terrorists’ trials, the judge said. He also asked who sent around 8,000 convicts to death row and whose fault was it that they were not executed.

“I am not holding the judiciary responsible or criticising the judges and as a citizen I also accept that our executive is not efficient and has no capacity to provide protection to judges or witnesses. But at the end of the day, someone has to deliver,” the counsel argued, reminding the court that cases had been pending before anti-terrorism courts which were supposed to wrap them up within weeks.

Justice Qazi Faez Isa wondered how the army would aid the federal government in the fight against terrorism under Article 245 of the Constitution and act as a judge in the military courts at the same time.

Justice Anwar Zaheer Jamali also sought assurances from the counsel that protections given to the citizens under Article 4 and 10A of the Constitution ensuring fair trial would not be taken away by the military courts.

Mr Anwar replied that Article 10A had been suspended under the 21st amendment because the country needed to be rid of the menace of terrorism. “Justice has been suspended for two years,” retorted Justice Khosa.

Published in Dawn, May 22nd, 2015

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