Pushback from S.C. justices over basis for Pakistan's new military courts

Two justices of the Pakistan Supreme Court have pushed back against claims by the government that deficiencies in the civilian courts compelled the government to turn to military courts. According to this account in The International News:

Supreme Court (SC) judge Sarmad Jalal Osmani observed that there was no need to set up military courts, and asked if the judges of the military courts would be more competent, dutiful and intelligent than those of the apex court and would be able to address all problems.

He further observed, “There is a shortage of staff in the courts and it is required to address the issue as a priority.”A two-member SC bench comprising Justice Jawwad S Khawaja and Justice Sarmad Jalal Osmani took up for hearing the case of implicating Haider Ali, citizen of Chakwal, in litigation by the police.

Justice Jawwad S Khawaja, while expressing grave concern over the statement of Prime Minister Nawaz Sharif published in newspapers with reference to pending cases in the courts, remarked that the government — and not the court — was responsible for the pending cases. “The government after declaring itself inefficient puts all the blame on the courts. On the one hand, the government says that it is its own incompetence that it cannot enact effective legislation and on the other, it is saying the courts don’t perform their function properly. When evidence is not collected against the culprits and challans are not completed, the accused will continue to be exonerated from the courts,” he observed.

He said, “Providing justice to the people is an obligation of the government. The courts should do their job or they should do the government’s job, too. If the government cannot do its job, it should empower the courts to run the government. . . .

The comments came in litigation unrelated to the recent military courts legislation, but suggest that the new courts may have rough going when their validity comes before the Supreme Court.

Meanwhile, a leading Pakistani lawyer has questioned whether it is proper to extend the military courts to the Gilgit-Baltistan area. "Rights activist and senior counsel Asma Jahangir wondered how a law creating such special courts could ever be challenged in an area that did not have an independent judiciary."

However, Ms Jahangir and SCBA president Fazal Haq Abbasi were not forthcoming when asked whether bar associations would challenge the 21st Amendment before the Supreme Court, saying it was not very easy to challenge acts which had both political as well as legal undertones.

“How you can expect 17 judges of the Supreme Court to act independently of public pressure when 342 members of parliament failed to withstand the same pressure and passed the amendment,” she asked.

The Communist Party of Pakistan has filed a Supreme Court petition attacking the military courts, according to this account in Dawn.