For an American observer, it is frankly difficult to get the full drift of the day-after-day arguments in the Supreme Court of Pakistan's consideration of the constitutional petitions challenging the 21st Amendment. The other day we read that the Attorney General had promised he would explain the operations of the new military courts by showing the judges video clips. Here is part of a news account of yesterday's proceedings:
The federal government has shown different video clips to the Supreme Court judges, wherein Taliban leaders claim that they don’t recognise the state of Pakistan or its Constitution.
Similarly, parents of the deceased Army Public School children were also present in the courtroom on Wednesday to express their solidarity with the federal government regarding its stance about the 21st Constitutional Amendment.
After watching the clips, the Attorney General for Pakistan (AGP) Salman Aslam Butt contended before the 17-judge full court that the Taliban have declared war against Pakistan therefore the constitutional amendment was introduced and modification made in the Army Act 1952. Justice Jawwad S Khawaja asked: “Why the state is not registering FIRs against them [Taliban].” In the same breath he inquired from where these people have emerged.The snippets here and in the rest of the news article may not do justice to what actually transpired in court, but if they bear any resemblance to the actual flow, they suggest a process much more free-form than what American practitioners are used to. The video that had been promised was to have explained the actual workings of the military courts, but this account gives no sense that that is what the video actually did. Rather, it sounds like the video was simply propaganda about the threat posed to the state by the Taliban.
He said earlier there was no distinction of Shia and Sunni, but now it is everywhere. “Who is responsible for the creation of these people [Taliban]?”
The AG said he would answer all these questions, but that he would do so in-camera.
Justice Qazi Faez Isa asked the attorney general if Da’esh [ISIS] has been declared a proscribed organisation and banned, and if the answer is in the affirmative, then show the court its notification. The AGP assured the court that he would produce the notification.
The notion of asking an appellate court on the spur of the moment to go into in camera session is also unfamiliar territory.
All of this may be the result of an appellate process that is radically different from the strictly time-constrained work of the Supreme Court of the United States, where multi-day arguments are (other than the extraordinary three-day argument in the first health care case in 2012) a relic of a long by-gone era. (The Editor recalls reading a 1974 admiralty case from the House of Lords--The Johanna Oldendorff [1974] AC 479--where the then highest court of the UK heard argument over several days. Perhaps this was not uncommon then, or even now.)
Free flowing arguments running into several days in important issues are not uncommon even in Indian Constitutional Courts (High Courts and Supreme Court). I believe the UK also has the same system but perhaps someone from there could throw more light.
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