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The Supreme Court said it holds no jurisdiction to entertain a petition challenging the setting up of military courts. — File
The Supreme Court said it holds no jurisdiction to entertain a petition challenging the setting up of military courts. — File

ISLAMABAD: The federal government argued before the Supreme Court on Monday that the court had no jurisdiction to entertain a petition challenging the setting up of military courts as long as the armed forces acted in aid of the civil power.

Replying to the points raised by a number of petitioners, Attorney General Salman Aslam Butt said the addition of clauses 2, 3 and 4 through amendments to Article 245 of the Constitution had taken away the jurisdiction of the superior judiciary to intervene since the validity of any direction issued by the federal government to the armed forces could not be called in question in any court.

A 17-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 to try hardened terrorists.

The attorney general cited a number of cases and presented a huge volume of case laws to emphasise that the constitutional provision (Article 245) also took away the jurisdiction of high courts under Article 199 in relation to any area in which the armed forces for the time being were operating in aid of the civil power.

Referring to Article 199(3) of the Constitution, he said the high courts could not look into the trials being conducted by the military courts, adding that the courts could also not issue any order in relation to the people who had been made subject to the Pakistan Army Act (PAA) 1952 or had connections with the armed forces.

Citing an example, the federal law officer explained that an enemy alien, if apprehended, would never be tried under ordinary civil courts; he would be produced before the Field General Court Martial. Such people could not approach high courts, he argued.

Entry 55 of the federal legislative list authorised parliament to legislate in certain situations to make laws or amend the constitution to net the people who come under the PAA.

The AG argued that the constitution had already determined the jurisdiction of courts. Besides, he added, the 21st Amendment had also given complete protection to the PAA.

Published in Dawn, June 23rd, 2015

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Comments (21) Closed



Zafar Jun 23, 2015 07:17am

If the Superior courts are violating their jurisdiction in this case, how can they order stay in any cases pending before the military courts. Looks like a chicken and egg problem. However it would be judicious to resolve this constitutional matter forthwith so that the military courts can resume their operations.

Zahid Jun 23, 2015 07:24am

good

Erik Jun 23, 2015 07:37am

Who is Supreme Court protecting here - people of Pakistan or those who kill the people of Pakistan? Supreme Court has never shown the same concern for the people of Pakistan who were being killed by these terrorists for the past many years. Why is the SC coming to the rescue of these terrorists? Are they with us or against us? We do not want such a SC. It must be abolished.

Gaurav Arya Jun 23, 2015 07:51am

Rustle up a constitutional crisis out of thin air. Well done, NS.

Ash Jun 23, 2015 08:36am

Govt. itself is hitting on her leg. NS did't learn from his earlier stint when he had to spend his days in jail or Saudi. He may again end up same in future.

Syed Jun 23, 2015 08:50am

We need military courts more than SC.

Muhammad Jun 23, 2015 09:41am

@Zafar Fully agree.

usama Jun 23, 2015 09:58am

Military courts had to step in because Supreme court was releasing all the terrorists so that they can kill us. Supreme court doesn't care about public because its not their families who are dying in the blasts but ordinary public

zafar iqbal Jun 23, 2015 10:31am

Let the Army take care of the enemy. If Asma Jahngir is so concerned about law and order then let her spend some of her spare time fixing things in civil courts where people wait years for justice!

Zahid Jun 23, 2015 11:03am

These judges have done utmost wrongs to the people in the area of so called justice after wearing robes of S.C.They have given many judgments against the amendments passed by the parliament in the past though challenged by their blue eyed sharifs then how can they now say that they have no jurisdiction to interfere in the amendments passed by the parliament! So they will try to linger this up as long as they can!

JUSTICE Jun 23, 2015 11:13am

A defeat for PPP and any other political parties who were against military courts trials , now anyone arrested for economical terrorism must face military courts for quick justice.

Malik Saab Jun 23, 2015 11:16am

Not surprising from a government tamed by establishment orchestrated sit-ins. Time for the SC to prove that the myth of the judicial independence is not dead yet.

khanm Jun 23, 2015 11:20am

The fundamental problem is that there's no credibility in our judicial system, which is a system that's been completely politicized. This is retaliation and selective repression.The idea that there aren't mistakes made constantly in the judicial system is too obvious even to need to mention even in the military courts... it is obvious they are political motivated...the only way to rule in Pakistan is to rule the courts ie military or civilian...

Zahid Jun 23, 2015 12:06pm

@Erik Sentiments of the rest of us are not different from the ones expressed by you in the last line!

Umer Salahuddin Jun 23, 2015 12:51pm

Those who called themselves champions of human rights and against military courts see only rights for the terrorists. Where are the rights for those who are killed by these terrorists. Don't they need any justice. Civil courts could not give them justice and cannot protects rights of these innocent people which include small children. For current extraordinary situation military courts are the solution.

rehan Jun 23, 2015 01:02pm

Good ! Let the Military Courts do the job as our Civil courts have complete failed to deliver.

rehan Jun 23, 2015 01:04pm

@Erik Well said. SC has done little but take "Suo Moto" notice here and there. People like Asma Jehangir are protecting death row convicts through petitioning at SC and this needs to stop.

Salih Jun 23, 2015 01:05pm

@Erik ......agreed ERIK. This was expected on day one when 21st amendment was made. There are element in every political party, institution etc who has interest above the people of Pakistan.

Farooq ahmad Jun 23, 2015 02:42pm

Supreme court should not indulge in this matter.entire nation wants to get rid of terrorits.

qadir jalbani Jun 23, 2015 04:39pm

If sc can,t deliver then military courts are best solution for this matter. We all know that our judicial system is low power due to political involvement.

Adnan Jun 24, 2015 04:11am

there is a long list of terror related cases where neither any judge or witness is ready to appear, due to fear and threats. Besides how many terror related cases have been prosecuted? Sufi Muhammad's case for instance is in civil courts and nobody dare appear as witness or judge. Let the justice be done, civil or military courts it doesn't matter, rather military courts are better as civil courts are not likely to do anything in the next 50 years.