Two new challenges filed to Pakistan's military courts

The Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA) have filed constitutional petitions with the Supreme Court calling into question the validity of the country's new military courts, according to this account in Dawn. The Lahore High Court Bar Association's case (Const. Pet. No. 2 of 2015) was already on file and will come on for further hearing on Thursday, by which time federal and provincial responses will be filed. The case remains -- so far -- before a three-judge bench. The new petitions do not seem to be available online, but Dawn provides important details on the organizations' contentions:

[T]he PBC and the SCBA have requested the court to interpret the 21st Amendment and hold that the jurisdiction of military courts will not be extended to civilians because the amendment is inconsistent with Article 175(1), 203 which empowers high courts to superintend subordinate courts and Article 4, as well as fundamental rights, principle of separation of powers and independence of judiciary.

They have also requested the court to declare the Pakistan Army (Amendment) Act (PAA), 2015 as ultra vires of the Constitution because it offends Article 203 and violates a number of fundamental rights guarantees extended to individuals and citizens.

The petitions said the court should revisit the May 12, 2000 Zafar Ali Shah case [Shah v. Musharraf, 2000 SCMR 1137] in which a 12-judge bench headed by then chief justice Irshad Hasan Khan had held that on Oct 12, 1999 a situation had arisen for which the Constitution provided no solution and the intervention of the armed forces through an extra-constitutional measure had become inevitable and, therefore, it was being validated on the basis of the doctrine of state necessity.

*  *  *

According to the petitions, the powers granted to the federal government to pick and choose the transfer of any proceedings against individuals accused of committing offence falling within the PAA would violate the principles of Article 25 which called for equality of citizens.

It has also created legal uncertainty regarding the judicial forum which can be used selectively because the accused framed under the same offences can be tried under the Protection of Pakistan Act (PPA) 2014, the Pakistan Penal Code in anti-terrorism courts and in Fata/Pata under the Action (in Aid of Civil Power) Regulation 2011.

The amendment, the petitions contended, had seriously impaired the system of administration of justice because the PPA was also under challenge before the apex court. Citing media reports, they said the amendment had been passed by parliament under pressure from the military high command, especially when the parliamentarians were on record having denounced extending jurisdiction of the PAA to civilians who might not be involved with crimes against the military or its security set-up.

Besides, a public tweet by the ISPR [Inter Services Public Relations] urging, indirectly, the parliamentarians not to ‘waste’ time is also a form of political intimidation and as such under the influence of the executive parliament passed the amendment.

This intrusion of the executive into the affairs of the legislature and the judiciary, the petitions said, was ominous, and a clear pronouncement by the Supreme Court was critical on the usurpation of political space by the armed forces.

The petitions have raised a number of questions, including whether the 21st Amendment can restrict the powers of high courts; whether trials under any system of law should not be subject to observing the principles of due process and fair trial and whether an accused arrested under the law is not entitled to the fundamental rights guaranteed under the Constitution during the period of his arrest.

If any of the pending constitutional petitions are online, please post a comment (using your name, please) with the link.