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