ISLAMABAD: The Supreme Court (SC) on Friday reserved its verdict in a case pertaining to petitions challenging the 18th and 21st constitutional amendments.
Earlier this month, the apex court was told that the 21st amendment, which established military courts to try hardened terrorists, had seriously undermined, disturbed and distorted the five broad structures and the scheme of the Constitution.
The court reserved its verdict today after acknowledging various appeals in the case. A 17-member bench under Chief Justice Nasirul Mulk presided over the hearing.
Senior counsel Hamid Khan was present at the court on behalf of the Lahore High Court Bar Association (LHCBA) and the Lahore Bar Association. Meanwhile, Asma Jehangir had presented arguments on behalf of the Supreme Court Bar Association (SCBA).
Attorney General Salman Aslam Butt had on Monday begun arguments for the case which went on during the past five days. Since the provincial and federal governments were also involved in the case, the advocate generals adopted his contention.
In his arguments, the attorney general had said that the Supreme Court could not intervene in situations pertaining to constitutional amendments. Those applicants who contended against the amendments said that army courts were unconstitutional.
The apex court's verdict is expected to be based on three points:
- Does a basic structure of the Constitution exist?
- Does the apex court have the power to set aside constitutional amendments?
- Are the 18th and 21st amendments in conflict with the Constitution?
During a related hearing at the apex court earlier this month, Hamid Khan had said that the five broad structures of the Constitution entailed the trichotomy of power, separation of judiciary from executive, independence of judiciary as an organ of the state, access to justice for citizens in terms of enforcement of fundamental rights and fair trial and due process guaranteed to citizens under the Constitution.
He had argued that the 21st amendment had disturbed these broad structures and had affected 12 different provisions of the Constitution.
Tracing its history, Khan had said military courts were not something new in Pakistan. “Our past is replete with such courts, either under martial law, in the name of special circumstances and sometimes even under democratic governments.”
A history of military courts in Pakistan
The first time military courts were introduced in Pakistan was in 1953 during the anti-Ahmedi riots in Lahore, whereas the second such occasion came in Oct 1958 when the first martial law was declared on the night between Oct 7 and Oct 8 and remained in existence for four years.
The third time such courts were introduced was on March 25, 1969, when Gen Yahya Khan declared martial law that remained in force until Dec 20, 1971.
Military courts remained operative until April 21, 1972, under a civilian martial law administrator and a large number of trials were held during the period.
In April 1977, military courts were established for a fourth time when a mini-martial law was clamped on Lahore, Karachi and Islamabad. However, the Lahore High Court struck it down while deciding the case of Darvesh Mohammad Arabi.
But the longest and the most repressive period in our history was when Ziaul Haq clamped martial law for eight long years and military courts tried a large number of political workers, mediapersons and journalists who suffered long jail terms.
The next effort was made in 1998, when the Pakistan Armed Forces Acting in Aid of Civil Power Ordinance 1998 was introduced on Nov 20. The ordinance was applied in certain parts of Sindh where the armed forces were called under Article 245 of the Constitution. But the ordinance had provided a special section dealing with appeals against the trials conducted by the military court – a provision missing in the 21st amendment.
In 1999, a nine-judge bench of the Supreme Court struck down military courts in the Sheikh Liaquat Hussain case. This judgment is the most relevant in relation to the 21st amendment since the notion that the judicial system has failed to deliver was adequately addressed in the Sheikh Liaquat Hussain case, the counsel had argued.