Up­holds es­tab­lish­ment of mil­i­tary courts

The Pak Banker - - NATIONAL -

In a land­mark judg­ment, the Supreme Court dis­missed all pe­ti­tions against the es­tab­lish­ment of the con­tro­ver­sial mil­i­tary courts in a ma­jor­ity vote on Wed­nes­day.

The apex court, in an 11-6 de­ci­sion, dis­missed a slew of pe­ti­tions against the 21st Con­sti­tu­tional Amend­ment, wherein mil­i­tary courts have been es­tab­lished to try mil­i­tants. The court, how­ever, stated that all de­ci­sions of mil­i­tary courts would be sub­ject to ju­di­cial re­view.

The 21st Con­sti­tu­tional Amend­ment was passed in Jan­uary as part of a crack­down on mil­i­tancy fol­low­ing a Tal­iban mas­sacre at the Peshawar Army Public school which left more than 150 peo­ple - mostly stu­dents - dead.

A 17- judge full bench also dis­missed pe­ti­tions against the 18th Con­sti­tu­tional Amend­ment in a wide 143 de­ci­sion. While an­nounc­ing the judg- ment, Chief Jus­tice Nasirul Mulk said, "In view of the re­spec­tive opin­ions recorded above, by a ma­jor­ity of 13 to 4, these Con­sti­tu­tion amend­ments are held to be main­tain­able."

"How­ever, by a ma­jor­ity of 14 to 3, the Con­sti­tu­tion pe­ti­tions chal­leng­ing the Con­sti­tu­tion (18th Amend­ment) Act (Act X of 2010) are dis­missed, while by a ma­jor­ity of 11 to 6 the Con­sti­tu­tion pe­ti­tions chal­leng­ing the Con­sti­tu­tion (21st Amend­ment) Act (Act 1 of 2015) and the Pak­istan Army (Amend­ment) Act (Act II of 2015) are dis­missed," he added.

A two-judge bench, headed by Chief Jus­tice Nasirul Mulk and com­pris­ing Jus­tice Dost Muham­mad Khan, an­nounced the de­ci­sion of the lager bench early Wed­nes­day morn­ing.

In a de­tailed judge­ment, Chief Jus­tice Nasirul Mulk de­clared that the su­pe­rior ju­di­ciary has the au­thor­ity to re­view any rul­ing of mil­i­tary courts on grounds of co­ram non ju­dice (be­ing with­out ju­ris­dic­tion or suf­fer­ing from mala fide).

The chief jus­tice de­clared that the su­pe­rior ju­di­ciary had the au­thor­ity to re­view the gov­ern­ment's se­lec­tion of cases and re­fer them for trial un­der the Pak­istan Army Act, 1952. How­ever, he added any or­der passed, de­ci­sion taken or sen­tence awarded shall be sub­ject to ju­di­cial re­view.

Ac­cord­ing to the judg­ment, there are no lim­i­ta­tions, ex­press or im­plied on the pow­ers of Par­lia­ment to amend the Con­sti­tu­tion and the amend­ments brought about in ex­er­cise of such power are not li­able to be chal­lenged on any ground what­so­ever be­fore any court.

"As this court lacks ju­ris­dic­tion to strike down any amend­ment in the Con­sti­tu­tion, it is not nec­es­sary to ex­am­ine the grounds on which the 18th and the 21st Amend­ments have been chal­lenged.

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