ISLAMABAD - “Don’t blame the judiciary for the failure of the executive” was the clear message to the federal government that has requested the Supreme Court to uphold the 21st Amendment and the amendment in the Army Act 1952.
Justice Asif Saeed Khan Khosa said, “It was wrong to say that terrorism in the country flourished because of courts (which allegedly let the militants go scot free).” It was not the judiciary but the executive that has failed in providing protection to the judges, witnesses and the prosecutors, he said. It was law and order problem and the executive is responsible for it, he added.
Full Court of the apex court, headed by Chief Justice Nasirul Mulk, was hearing the government’s petition on the 21st Amendment. And, the judge gave these remarks when federation’s counsel Khalid Anwar while referring to the Liaquat Hussain case said it is because of the judicial system that terrorism in the country flourished.
The counsel said that experiment in the Liaquat Hussain case also failed, as the judges are still terrified to conduct trial of terrorists. In that case the SC had asked the ATCs to complete proceedings within 14 days. Khalid said 80 per cent cases in ATCs were still pending, adding, “The civilian can’t do this, we don’t have the (required) system; we can’t provide protection to judges, witnesses and the prosecutors.”
Justice Khosa remarked, “Your thrust is that the doctrine of necessity that we (the court) have buried, now be resurrected (by accepting government’s emergency measures).” He said, “The judges are cooperating with the executive but even then they were being blamed.” Around 8,000 persons are on death row because the courts had sentenced them, but if the government had not hanged them then it was not the judiciary’s fault.
Justice Anwar Zaheer Jamali asked the counsel if he can assure the court that Article 4 and 10A of Constitution will not be violated. He admitted that Article 10A is suspended under the 21st Amendment. The court observed it means Article 10A will remain suspended for two years. Khalid said the Supreme Court has jurisdiction but has to show restraint, and requested the court to uphold the 21st Amendment and the Army Act amendment.
He contended the 21st Amendment is of temporary nature and all parliamentary parties had unanimously passed it. He said there would be no benefit of other things (constitutional rights and freedoms) if there is no democracy. Justice Jawwad said, “We should not forget our history as deviation started 2 to 3 years after the 1973 constitution.” Khalid Anwar reminded the court about judgments given by courts to favour the dictators. He said judgments in Dosso, Nusrat Bhutto and Zafar Ali Shah cases were terrible.
Justice Khosa said there is lack of will as various laws including the Anti-Terrorism Act and the Protection of Pakistan Ordinance were not implemented. He said it was not fault of law, but of functionaries. Justice Ijaz Ahmed said being in-charge of ATCs he met with various ATC judges and not a single judge told him that he does not like to perform duties in the ATC. He said not a huge number but a few cases were pending in ATCs, and if the government has a list of such cases then it should provide it to the apex court.
Khalid Anwar stated the country was facing incontrovertible situation — the economy, peace and tranquillity all are disturbed. He contended the civilian order does not have capacity to control these things. Justice Saqib Nisar said if someone had taken the responsibility to rectify the system then the court should add tools to its weaponry to save future generations.
However, Justice Khosa asked the counsel why the government needed court stamp on its actions. “Why we should uphold the 21st Amendment in the name of justice. Let the justice remain justice.” The court questioned if the legislature acted on army’s bid. Justice Qazi Faez said, “Why we are burdening the army to act as judges when they are fighting against terrorists.”
Earlier, Khalid Anwar said that according to section 1(3) of the 21st Amendment, military courts are established for two years. He said 30,000 to 50,000 citizens were killed in one decade due to terrorism. Upon that the chief justice inquired if the situation remains the same then what will happen after two years. Justice Jawwad said so many perpetrators were arrested but we don’t know if they got tried or not.
Justice Qazi Faez said clause 3 of Article 175 has been amended. Article 175(3) talks about separation of the judiciary from the executive within 14 years. He said through the amendment, the federation wanted them to take back to the old situation. Justice Khosa inquired if the US President can order that civilians be tried by military courts. The CJP questioned was there any case law that says civilians can be tried by the military courts.
The CJP said Guantanamo Bay is not a good example, as people were detained there for years without trial and later released as there was no evidence against them. Justice Khosa further pointed out that Guantanamo Bay detainees were enemies and illegal combatants and not US citizens. He also said Winston Churchill had once said: If the courts are working, nothing can go wrong. The judge said to the counsel, “You are saying we are at war so forget about justice.”
The Chief Justice said to the counsel: “I remember you had told that the Supreme Court has jurisdiction under this Act. Is that true?” Khalid replied the SC does have jurisdiction but has been restricted under the 21st Amendment. Upon that Justice Jawwad remarked: Restricted or ousted.
The CJP asked, “Are you saying our (SC) jurisdiction is ousted?”
Khalid said, “No, the court has jurisdiction but....”
The CJP remarked there is lot of emphasis on ‘but’.
Khalid Anwar said under the 21st Amendment the civilians have also been subjected to Army, Navy and Air Force Acts. The federation counsel completed his argument and hearing was adjourned till Monday.