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Ex-CJ terms military courts unconstitutional

December 31, 2014

ISLAMABAD: Supreme Court’s former chief justice Iftikhar Muhammad Chaudhry said on Tuesday that it was unconstitutional to set up military courts.

“Independent judiciary is already present in the country so there is no need for military courts. Such courts are illegal because the basic structure of the constitution guarantees an independent judiciary,” he said.

Justice Iftikhar was talking to journalists at the residence of High Court Bar Association’s former secretary general Siddique Awan after condoling the death of his father-in-law.

After the terrorist attack on the Army Public School in Peshawar, parliamentary parties have decided to set up special military courts headed by army officers to try terror suspects.

In reply to a question, the former chief justice said that even if law was amended it would be against the basic structure of the constitution. Parliamentarians could not change the basic structure of the constitution, he added.

“If government wants speedy trial of terror suspects it should increase the number of judges and courts. Courts cannot be blamed for a delay in dispensing justice.

Courts only give decisions but it is the job of the administration to implement the orders,” he said.

Talking to Dawn, Lahore High Court Bar Association’s former president Sheikh Ahsanuddin, who accompanied the former chief justice, said military courts were against the basic principal of the constitution as well as independence of judiciary.

There are two judgments of the Supreme Court – Sheikh Liaquat Ali versus the federation and Mehram Ali versus the federation in 1999 – against the establishment of military courts.

“I feel that even if the parliamentarians amend the law and set up military courts, they (courts) will be rejected by the Supreme Court if someone challenges them in the court,” Mr Ahsanuddin said.

Moreover, he added, there were already three acts – Suppression of Terrorist Activities (Special Courts) Act, 1975; The Anti-Terrorism Act, 1997; and Protection of Pakistan Act, 2014 – which dealt with terrorism. “There is no requirement for military courts because these three acts fully address all issues relating to terrorism,” he said.

He said civil courts had so far announced as many as 8,400 death penalties while military courts only 18. “It shows that the performance of civil courts is much better than military courts.”

He said he believed that “we are heading towards civil marshal law by establishing military courts”.

Published in Dawn, December 31st, 2014