It's too soon to say whether the Supreme Court of Pakistan's bark is worse than its bite, but perhaps there is reason for a smidgen of optimism based on this account of today's hearing on the various constitutional petitions challenging the 18th and 21st Amendments to the Constitution -- and the military courts:
Pakistan’s Supreme Court on Thursday said the establishment of military courts could not be blamed on the judiciary but in fact was a failure by the government and civil departments.
A 17-judge bench headed by Chief Justice Nasirul Mulk heard the 18th and 21st constitutional amendment case here on Thursday.
The judges castigated PML-N counsel Khalid Anwar over the formation of military courts.
Chief Justice Nasirul Mulk asked how, if basic rights were suspended, relief could be provided against the verdicts of military courts.
Justice Qazi Faez Isah remarked that the job of the army was to defend the borders, not to sit in judges’ chairs. Why was the additional burden being put on them, he questioned.
“It has become a tradition when government fails to do its job of protecting the people it is quick to blame the judiciary. Should we hold the Constitution and justice in abyss for two years?” he said.
Counsel Khalid Anwar, giving his arguments, said even in the US* and Australia, the verdicts of military courts cannot be challenged as it is a matter of national security.
He said that, due to a wave of terrorism in the country, there was dire need to make effective legislation, and awarding strict punishments to terrorists was the need of the hour.
The options were to leave the country at the mercy of terrorists or take measures for their elimination, he said. Due to this situation the 21st amendment was approved.
If another tribunal is formed under the 21st amendment, even then its jurisdiction cannot be challenged under article 199, he added.
Anwar further argued that judges of terrorism courts and High Courts and witnesses are threatened and their lives are at risk, due to which often enough evidence is not provided and the criminals go scot free.
“We have to drink this bitter medicine of military courts as we cannot provide protection to key witnesses and judges and under this air of fear judges cannot perform their duty,” Anwar said.
He further argued that the state’s case was very strong and basic rights were being protected.
Justice Asif Khosa said the counsel’s remarks meant that he was saying, due to the judicial system, terrorism was increasing. He said this was a law and order problem and it is the job of administration to tackle it.
Justice Khosa added that the establishment of military courts was not the failure of the judiciary, but failure of government, administration and civil departments.
He further said there was need for speedy trials.
“The delay in terrorism cases is due to delay in evidences and incompetence of the prosecution. Who bought 8,000 people [to face] death [sentences]? We didn’t bring them.”
To which Anwar replied, “I agree it is the incompetence of the administration. The civil system has failed.”
He said that he was not criticising the SC.
“In Karachi the army is working and my rights are affected, but the people are happy as they are being protected.”
The chief justice asked how, if basic human rights were suspended, people could approach the court.* Really? What about the statutory provisions for review of courts-martial and military commissions, or cases like Duncan v. Kahanamoku or Hamdan v. Rumsfeld or a host of other decisions of the Supreme Court of the United States. True, deference runs strong and deep when military issues reach the Supreme Court, and equally true, the limits on which courts-martial are subject to appellate or habeas corpus review are excessive. But counsel's casual characterization of American law on the subject is nonetheless very wide of the mark. [Footnote added. Perhaps a reader in Australia may wish to comment on the High Court of Australia's national security jurisprudence and judicial review of courts-martial, as in Re Aird and other cases.]
The court sought a detailed report of killings in terrorism incidents and adjourned the hearing until Monday.
Of course, talk is cheap, and comments from the bench at oral argument may or may not augur what the court or any member will do when it comes time to vote and write an opinion. Still, this is an engaged court, fully aware of the high stakes.