ISLAMABAD: The Supreme Court on Tuesday emphasised the need to strike a balance between the rights of citizens and the defence of the country, saying that unbridled powers could not be vested upon any institution, not even the armed forces, to take up matters on their own, in the name of defence.

“It would be a dangerous proposition to say that the armed forces would have the authority of parliament or the Supreme Court to take up a matter on their own without any legal directions by the federal government, in the name of defence of the country,” observed Justice Asif Saeed Khosa, a member of the 17-judge full bench.

Headed by Chief Justice Nasir-ul-Mulk, the full court was hearing challenges to the 18th and the 21st amendments, which deal with the procedure of appointing superior court judges and the setting up of military courts to try hardened terrorists, respectively.

AG argues army does not need orders to act against clear and present threats

The observation came when Attorney General Salman Aslam Butt argued that in the light of Article 245 of the Constitution, no court could intervene so long as the armed forces acted in aid of civil authority, or there was a threat of war, adding that the armed forces did not need permission from any quarter to protect and defend the country against any internal or external aggression.

Elaborating further, the AG used an analogy when he asked whether the armed forces should wait for orders if there was an imminent threat to Islamabad from 500 militants gathered around the Margalla Hills.

“We are confronted with a similar situation in the present scenario, when Operation Zarb-i-Azb is going on against militants involved in activities inimical to national security,” the government’s primary law officer argued, adding that the setting up of military courts was not an alien concept in Pakistan.

For security of the state, common law and various countries’ constitutions all recognise the state’s power to defend itself, both against external aggression and internal insurrections, insurgencies and civil wars, the AG argued. He added that the constitution envisaged that any person acting against the defence of Pakistan or becoming a threat to the defence of Pakistan, in time of war or peace, could be subjected to the Pakistan Army Act (PAA) and can be legally and constitutionally tried by the courts established under it.

A class of persons admittedly acting against the defence of Pakistan, raising arms or there issuing a real or imminent threat of war against the state of Pakistan have been legally subjected to the courts under the PAA, the AG argued.

But the court observed that the Supreme Court cannot be deprived of its jurisdiction to enforce fundamental rights under Article 184(3) of the Constitution in any situation and asked for details of the cases awaiting adjudication in different anti-terrorism courts, as well as the reasons for the delay in their adjudication.

Citing an example about Swat from five years ago, Justice Dost Mohammad Khan recalled that nobody had talked of creating a parallel judicial system or military courts when militants had overrun the valley and hoisted their own flag instead of the Pakistan flag. At that time too, the armed forces had acted in aid of civil power and expelled militants from the area.

Published in Dawn, June 24th, 2015

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