IN THE SUPREME COURT OF PAKISTAN, ISLAMABAD.
Constitutional Petition No. of 2015.
Communist Party of Pakistan,
Through its Central Chairman:
Engineer Jameel Ahmad Malik,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
1. Federation of Pakistan through Secretary, Ministry of law, Justice and Parliamentary Affairs, Islamabad.
2. National Assembly of Pakistan Speaker through Secretary, National Assembly Secretariat, Islamabad.
3. Senate of Pakistan Chairman through Secretary, Senate Secretariat, Islamabad.
A Constitution Petition under the Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 challenging the Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 as ultra vires and against the basic structure of the Constitution and the Articles 2-A, 4, 5, 8, 9, 10, 10-A, 14, 17, 19, 25, 175 and 190 of the Constitution of Pakistan, 1973.
That the aforesaid Constitutional Petition under the Article 184(3) of the Constitution of Pakistan, 1973 read with Articles 2-A, 4, 5, 8, 9, 10, 10-A, 14, 17, 19, 25, 175 and 190 of the Constitution of Pakistan, 1973 is being filed by the petitioner on the points of law, facts and grounds, as narrated, herein as under:-
(I) POINTS OF LAW:
A. Whether the Parliament can do any amendment in the Constitution of Pakistan, 1973 and Army Act of 1952 which is against the basic structure of the Constitution?
B. The basic question in our constitutional petition is whether the basic structure theory is applicable here in Pakistan like India or not? The basic structure or features of the Constitution of Pakistan, 1973 are: (i) Parliamentary form of government; (ii) Islamic provisions or democracy blended with Islam; (iii) Provision of fundamental rights; (iv) Independence of Judiciary; and (v) Federalism.
C. Whether the Parliament can do any amendment in the Constitution of Pakistan, 1973 and Army Act of 1952 which curtails the independence of judiciary?
D. Whether the Parliament can do any amendment in the Constitution of Pakistan, 1973 and Army Act of 1952 which create parallel judicial system by passing all existing judicial systems?
E. Whether the Parliament can do any amendment in the Constitution of Pakistan, 1973 and Army Act of 1952 which curbs, curtails and infringes the fundamental rights of the citizens which were guaranteed to them under the Constitution of Pakistan, 1973?
F. When there is a conflict between two Articles of the Constitution, which Article would prevail upon other – the old or new Articles incorporated through amendment in the Constitution of Pakistan, 1973?
G. Whether the Parliament can do any amendment in the Constitution of Pakistan, 1973 and Army Act of 1952 which curbs, curtails and infringes the right of fair trail of any criminal or hardened terrorists guaranteed to him under Article 10-A of the Constitution of Pakistan, 1973?
H. Whether the Parliament can do any amendment in the Constitution of Pakistan, 1973 and Army Act of 1952 which curtails the independence of judiciary?
I. Whether the Parliament can do any amendment in the Constitution of Pakistan, 1973 and Army Act of 1952 and can create and establish military courts?
J. Whether the Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 are bonafide or malafide one?
K. Whether the Parliament can do any amendment in the Constitution of Pakistan, 1973 and Army Act of 1952 bypassing and ignoring the Supreme Court judgment as given in Mehram Ali v. The Federation (PLD 1998 SC 1445) and Liaquat Hussain Case (PLD 1999 SC 504) which declared the Military Courts as un-constitutional?
L. Whether the Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 by the Parliament would be in conformity with the Articles 2-A, 4, 5, 8, 9, 10, 10-A, 14, 17, 19, 25, 175, 187 and 190 of the Constitution of Pakistan, 1973?
M. The passing of the two bills namely Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 for creating the ‘Military Courts’ in violation to the Oath taken by the Parliamentarians, Senators and Army officers to preserve, protect and defend the Constitution of the Pakistan can be treated as High Treason under Article 6 of the Constitution of Pakistan, 1973 or not?
N. Under Article 184 (3) not only an aggrieved person but any person can knock the doors of Supreme Court and question of locus standi or on the right forum is thus not attracted if a question of public importance with reference to the enforcement of any of the Fundamental Rights is involved. Is this view of the petitioner communist party is legal and correct?
(II) FACTS OF THE CONSTITUTIONAL PETITION:
1. That this is a public interest petition.
2. That the petitioner is a political party established in almost every country of the world. In some parts of the world, the Communist Party is a ruling party and in the rest of the countries, it is opposition of the ruling party. Its basic manifesto is to have socialism based on the ideology of Karl Marx, who was a German philosopher, political economist, historian, political theorist, sociologist, communist and a great revolutionary of all era. Communist Party of Pakistan (CPP) under its subjective condition is in the political arena for the social change, free from exploitation of man by man and is working for the welfare of the downtrodden and poor masses. CPP is a registered political party with the Election Commission of Pakistan under the Article 17 of the Constitution of Pakistan with Sickle as its election symbol. Accordingly, the CPP files this petition through its Central Chairman, Engineer Jameel Ahmad Malik on the following facts and grounds, which are as under:-
3. That the status of petitioner in terms of Rule 6 of Order XXV of the Supreme Court of Pakistan Rules, 1980 and vide Article 17 of the Constitution of Pakistan, 1973 is a political party and does not come under any law for the persons in the service of the Armed Forces of Pakistan. As such she is not barred by Articles 199 and 184(3) from invoking the Original Jurisdiction of the High Court and Supreme Court. However, she has not moved any High Court because of limited jurisdiction.
4. That the National Assembly and Senate of Pakistan on the 6th of January, 2015 approved and passed the two bills as moved by the Federation of Pakistan (Respondent No. 1) concerning the Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 and which was assented by the President of Pakistan on 7th of January, 2015 for creation of ‘Military Courts’. The Gazette of Pakistan Notification dated January 8, 2015 concerning the Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 are placed at the Annexure “A” and “B” respectively for ready reference please.
5. That the Military Courts have bad memories and in the past they were always used for political victimization. Secondly, the trials of Military Courts normally were held in-camera and the media had no access. The history of the ‘Military Court’ is also not good in our country and the petitioner’s party former General Secretary Jam Saqi along with other members of the Communist Party of Pakistan namely Prof Jamal Naqvi, Sohail Sangi, Badar Abro, Kamal Warsi, Amar Lal and Shabir Shar was arrested in General Zia era and were tried in a Military Court in 1983 headed by Colonel Atiq Hussain on the charges of terrorism, un-patriotic and for allegedly acting against the sovereignty of Pakistan which were totally all vague and frivolous charges, as communist is neither a terrorist nor un-patriotic. Communist anywhere in world is always pro-people and patriot citizens like other citizens are.
This case is also known as communist case or Jam Saqi case and during the military trial of Jami Saqi case, many stalwarts such as Baloch leader Mir Ghous Bux Bizenjo, Benazir Bhutto, Khan Abdul Wali Khan, Tahira Mazhar Ali Khan, Mairaj Mohammad Khan, Fatehyab Ali Khan, Maulana Shah Mohammed Amroti and among the journalists Minhaj Burna, Afzal Siddiqui, Shaikh Ali Mohammed, Shaikh Aziz, Abdul Ghani Dar, Abdullah.J Memon then commissioner and others appeared as defence witnesses but the ‘Military Court’ did not consider any evidence of the defence witnesses and sentenced Jam Saqi and all others communist leaders unlawfully and illegally for ten years.
6. The Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act 2015 which shall come into force at once, shall remain in force for a period of two years from the date of its commencement and shall cease to form part of the Act and shall stand repealed on the expiration of the said period unless extended by resolution passed by each house of Parliament.
The statement of objects and reasons says there exists grave and unprecedented threat to the integrity of Pakistan by the raising of arms and insurgency using the name of religion and a sect by groups of foreign and locally funded elements including warriors using the name of the religion or a sect who are to be severely dealt with under the law.
Prime Minister Nawaz Sharif was present in the House and Senate when the two bills were tabled while PTI leader Imran Khan and his legislators and JUI Maulana Fazal-ur-Rehman and his party legislators stayed away. Similarly the legislators of Jamaat-e-Islami also stayed away from voting. However, the tabled bills were also agreed by Imran Khan, Maulana Fazal-ur-Rehman and Siraj-ul-Haq held on 3rd January, 2015.
7. That the establishment of military courts is against the doctrine of basic structure of the Constitution and will not prove to be detrimental in the fight against militancy. That fighting militancy with military courts is not the right thing to do. “These militants are prepared to die, they are not afraid of being executed
because they are brainwashed into believing that armed jihad is a one way direct ticket to heaven.” These military courts cannot offer any solution when our real fight is with an ideology; the State needs to root out the mindset that is fuelling hatred in our youth. The factories producing suicide bombers and gun tooting youth must be shut down. We are groping in the dark on our strategic national security policy; the state does not know how to tackle a society so divided on political, sectarian and religious lines. Fatwas are repudiated with more fatwas sunni, barelevi, shia, hanafi scholars issue edicts against each other and no edict issued by one sect is acceptable to other. The parliamentarians have time and again betrayed the people this time and they have also betrayed the constitution. Who will guarantee the fundamental rights to the people? The answer is only the Supreme Court of Pakistan and none else.
That the time for the Government action was yesterday and that the establishment and the State have both ignored the menace in the past resultantly the problem has taken a mammoth scale-a hydra of sorts every time you kill or capture one Taliban three more crop up to replace him.
The measures which the state should now take are firstly the army must first cleanse itself of those factions who maintain a soft corner for the Taliban. Secondly the intelligence agencies account should be managed by the Public Accounts Committee to ensure transparency and accountability. The fact that the judiciary has to bear the brunt of criticism every time a national tragedy hits. The judges alone cannot fix the system if the investigation and prosecution are faulty. Establishing military courts and citing low conviction rates are not the right approaches. The judges will uphold the principal of due process and will not favor bypassing the due process by way of summary criminal proceedings.
We know and read about a lot about the background of Zia-ul-Haq Military Courts. What the commonly appeared between those courts and currently is to be established after 21st amendment in the Constitution of Pakistan, 1973. One thing is common guilty will have to prove innocent. At that time innocents were those political workers, who agitated against Zia regime, and now are the creators of Zia regime.
The new year of 2015 started with new challenges for the “Democratic Forces” of the country, that all the bourgeoisies political parties who are sitting in the present “Engineered Parliament” are going to further defaced the 1973 Constitution by inducting the formation of “Military Courts” in the Constitution through a constitutional amendment, which is a highly un-constitutional act by them and the justice demands that all the bourgeoisies leaders of the political parties, who have passed these amendments should be trialed under Article 6 of the Constitution of Pakistan, 1973.
It is very much clear and there is a general perception of our people that “Army Courts” means no court at all.
The government had already set up anti-terrorism courts for the elimination of terrorism and there was no need for forming new courts for this purpose. The judges of the ATCs, prosecutors, staffs and witnesses were not provided with security by the government and the protection of the judges would bear good results and the government should rely on the ATCs instead of forming military courts as was decided by the larger bench of 9 members in Liaquat Hussain case reported as PLD 1999 Supreme Court 504 and 1999 SCMR 569.
8. That the 21st Amendment is considered in friction with the independence of the judiciary and for the same reason, the Military Courts during Nawaz Sharif’s second term were abolished by the Apex Court as above referred. The creation of military courts in our party opinion is seen as a step backwards that could undermine parliament, democracy and judiciary. These are our sad days in our constitutional history that where previous constitutional amendments during civilian dispensations were designed to clear the mess left behind by military dictators, this time it is the civilians who will be muddying the document to empower the army further. The 21st constitutional amendment will stand as a monument to the betrayal of the civilian, democratic cause. The setting up of military courts is like swallowing a bitter pill for the bourgeoisie political leadership. However, for the military spokesperson it’s a step towards “greater democracy”. While signing for the creation of military courts, all the bourgeoisie politicians led by Nawaz Sharif have basically admitted to their failure and incompetence to improve the criminal justice system of the country. Why the kind of resolve we have seen for the creation of military courts has always been missing whether we talk about the present regime or the past government.
9. That one other aspect needs consideration of the Apex Court. The Parliamentarians do have the right to change the doctrine of the basic structure of the Constitution subject to the conditions as decided in the case of WUKALA MAHAZ BARAI TAHAFAZ DASTOOR versus Federation of Pakistan, in which the Supreme Court in 1998 (PLD 1998 Supreme Court 1263) hold that a political party voted to power, if during its election campaign, or in its election manifesto did not seek mandate from the electorate to bring about changes in the essential and basic features of the Constitution, it would lack necessary authority to bring about those changes in the Constitution by moving amendments in parliament.
Now all the political parties in the Parliament and Senate of Pakistan did not seek during its election campaign, or in its election manifesto any mandate from the electorate to bring about changes in the essential and basic features of the Constitution for the establishment of the ‘military courts’ and even on this sole score and touchstone, these amendments are likely to be struck down by the Apex Court.
Furthermore, the 21st Constitutional Amendment and creation of military courts on the touchstone of Article 8 of the Constitution denied the people their fundamental rights of fair trial and due process through independent and impartial courts. The amendment also affects the rights guaranteed to citizens under Articles 4, 5, 8, 9, 10, 10-A, 19 and 25 of the Constitution. The 21st Constitutional Amendment, as approved by the present parliament, is seen as contrary to the Constitution’s basic features.
10. That the political, constitutional and legal experts of our party are of the opinion that the impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 would not only undermine the independence of the superior judiciary but also curtails the fundamental rights of the citizen and fair trial of any person, criminal and hardened terrorist as enshrined and guaranteed to all the citizens in the Constitution of Pakistan, 1973 and these amendments are also against the basic structure of the Constitution of Pakistan, 1973 as well.
Even otherwise, before moving the bill in the Parliament, the President assent and approval from cabinet is the prior conditions for any such amendments which is to be incorporated in the First Schedule of the Constitution of Pakistan, 1973 and which in the present amendments, the prior assent of President and Cabinet was all together ignored and bypassed by the Respondents with ulterior motives.
My Lordships! It is, therefore, graciously and humbly requested that an appropriate order which deemed fit in the current scenario for protecting and save guarding the basic structure of the Constitution of Pakistan, 1973 and the independence of judiciary, fundamental rights of citizens and fair trial of any person, criminal and hardened terrorist as enshrined and guaranteed to all the citizens in the Constitution of Pakistan, 1973 as deemed fit may kindly be passed by the Supreme Court of Pakistan in the interest of justice, interalia on the following genuine
11. Accordingly this Constitutional petition is filed on the following among other genuine grounds, interalia:-
(i) CONSTITUTION (TWENTY FIRST AMENDMENT) ACT, 2015 AND THE PAKISTAN ARMY (AMENDMENT) ACT, 2015 FOR CREATING MILITARY COURTS IS UN-CONSTITUTIONAL AND AGAINST THE BASIC STRUCTURE OF THE CONSTITUTION OF 1973 SAYS TWO FORMER CHIEF JUSTICE OF PAKISTAN NAMELY MR. IFTIKHAR MOHAMMAD CHAUDHRY AND MR. SAEEDUZZAMAN SIDDIQUI.
The basic structure or features of the Constitution of Pakistan, 1973 are:
(i) Parliamentary form of government;
(ii) Islamic provisions or democracy blended with Islam;
(iii) Provision of fundamental rights;
(iv) Independence of Judiciary; and
The Preamble and the Article 2-A of the Constitution of Pakistan, 1973 fully secured the Independence of Judiciary whereas through the aforesaid amendments, the Independence of Judiciary has now been undermined, infringed and compromised with the creation of Military Courts through the Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015.
In our party opinion, the questions of these amendments which infringes, curbs and curtails the Independence of Judiciary are against the basic structure of the Constitution and this matter can be agitated and raised before the Apex Court in contrary to what has been said in Article 239(5) of the Constitution. In petitioner opinion “The Supreme Court has all the powers to examine whether any constitutional amendment has been made in line with the basic scheme or totality of the Constitution or not,” just in a way the Indian Supreme Court had struck down some Articles of the Indian Constitution by introducing the “principle of basic structure of the Constitution”.
Similarly our Supreme Court of Pakistan can strike down any Constitutional Amendment if it found it in contradiction with the basic structure and basic principles of the Constitution.
Incidentally on this issue, the former Chief Justice of Pakistan Mr. Iftikhar Mohammad Chaudhry on January 6, 2015 (Tuesday) said establishing military courts in the country to try terror suspects is unconstitutional.
The former Chief Justice was speaking to media representatives in the federal capital.
“Military courts are illegal and unconstitutional. The basic structure of the Constitution guarantees an independent judiciary, and military courts cannot be established in the presence of an independent judiciary,” Ex Chief Justice of Pakistan said.
The former Chief Justice also said that no amendment or law can be made which challenges the fundamental basis of the Constitution.
Moreover, as the Supreme Court had declared in 1999 the setting up of military courts as unconstitutional and illegal, therefore, the political leadership decided to amend the Constitution to provide constitutional cover to the proposed special courts in contrary to Apex Court’s judgments.
In the past, the Supreme Court had already set aside a similar law introduced by the Nawaz Sharif government in 1999 on a petition moved by Sheikh Liaquat Hussain. The government then had established the special military courts in Sindh.
Whereas the former Chief Justice of Pakistan Justice (Retd) Saeeduzzaman Siddiqui has also said that the Supreme Court (SC) can strike down the 21st Constitutional Amendment.
He argued that in the 1996 landmark Al-Jehad Trust Case (PLD 1996 Supreme Court 324) — commonly known as the Judges Case — the Apex Court had already struck down an Article of the Constitution on the precise question of the Independence of the Judiciary.
Justice Siddiqui rejected the impression that there was no precedent in the history of Pakistani judiciary where any constitutional article had been struck down by the Apex Court. He added that the setting up Military Courts during Prime Minister Nawaz Sharif’s second term was also undone by the Supreme Court, as such courts were found a parallel judicial system which, according to the Supreme Order, could not be permitted to be established in Pakistan.
Justice Siddiqui also referred to the case challenging the 18th Amendment in the Supreme Court with regard to the judges’ appointment procedure as was introduced by parliament through a Constitutional Amendment in 2010. However, the Apex Court had reservations about the said procedure following which it had sought certain changes which were duly made by parliament through a constitutional amendment. The said case, Siddiqui said, was still pending before the Apex Court.
Referring to the Al-Jehad Trust Case of 1996, Justice (Retd) Siddiqui said that before this particular case, the President was empowered to appoint a sitting Chief Justice of a High Court or a Judge of the Federal Shariat Court under Article 203C of the Constitution without his consent. But the Supreme Court in 1996 in the Al-Jehad Trust Case, struck down the said Article of the Constitution finding it in friction with the Independence of the Judiciary as guaranteed by the Constitution.
In the said case, the SC had declared the Article 203-C as being a violation of Article 209, which guaranteed the tenure of office. The SC judgment said, “Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the framers of the Constitution, the same shall prevail and, hence, such an appointment will be void.”
Following the Supreme Court’s 1996 judgment, the Article 203-C of the Constitution became redundant and was never applied again because of the Apex Court’s decision. The said Article was giving the executive the authority to appoint any Judge or Chief Justice of any High Court as Judge in the Federal Shariat Court. According to the redundant constitutional Article, if any such High Court Judge does not accept the appointment as a Judge of FSC, he shall be deemed to have retired from his office.
The SC had found that the appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203C of the Constitution without his consent is violative of Article 209 of the Constitution of Pakistan, which guarantees the tenure of office.
It added that Article 203C of the Constitution having been incorporated by the Chief Martial Law Administrator and Article 209 of the Constitution having been enacted by the framers of the Constitution and also being beneficial and promoting the Independence of the Judiciary, in case of conflict between the two, Article 209 of the Constitution shall prevail over Article 203C which detracts from dominant intent and spirit of the Constitution, namely the Independence of the Judiciary and such an appointment will be void.
(ii) CONSTITUTION (TWENTY FIRST AMENDMENT) ACT, 2015 AND THE PAKISTAN ARMY (AMENDMENT) ACT, 2015 VIOLATES THE INDEPENDENCE OF JUDICIARY AS ENSHRINED IN THE PREAMBLE AND ARTICLE 2-A OF CONSTITUTION OF PAKISTAN, 1973.
That the impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 is in total contradiction and also violative with the Oath taken by the Parliamentarians and Senators where while taking oath under Articles 65 has pledged to follow the Constitution but surprisingly the impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 has not only undermined and curtailed the independence of the judiciary, guaranteed by Articles 2-A, 175 and 190 of the Constitution but also severely infringes the fundamental rights of the citizens of Pakistan for fair trial under Article 10-A who so ever he or she may be and whereas the various provisions of the impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 are also in derogation/inconsistent with the fundamental rights guaranteed by the Constitution.
The constituent assembly had promulgated objective resolution in 1949. Ultimately it was incorporated in preamble of the constitution of Islamic Republic of Pakistan and thereafter it was made substantive part of the constitution by adding article 2-A. It is evident from the history of human being that leader/nation would only progress on the basis of its good character.
Once an individual leader or nation had deviated from this then destruction is the result. The best example in the recent history of human society is of Communist China when this nation with its birth two years after Pakistan, has attained a position.
But unfortunately in our own country of Pakistan, the Respondent No. 1 have loudly justified their acts on the state and privately controlled media and by doing them have purposely created confusion about the constitutional powers as laid down for the executive and for the independence of Judiciary.
This malafide act of the government respondents, if allowed to remain in the field, will take away the dream of an independent judiciary and rule of law.
That the impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 was promulgated and accepted by the chief executive and president of the country in order to destabilize, undermine and shake the foundations of the Constitution. Furthermore, President Mamnoon Hussain, Prime Minister Nawaz Sharif, Chief of Army Staff Raheel Sharif and all other Members of the National Assembly and Senate of Pakistan used Parliament to pass the bill to their advantages and abused the powers vested in them by the people.
The impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 has curtailed the independence of the judiciary and violated the spirit of constitutional provisions.
The impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 was passed to curtail the independence of the judiciary in violation of the spirit of the constitutional provisions. The respondents through the impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 had unconstitutionally and unlawfully attempted to make the constitutional provisions ineffective, which was not warranted by any constitutional amendments and law. This newly enacted Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 is discriminatory, against the principle of equality of citizens and its aim is to curtail the independence of judiciary.
The impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 is discriminatory and against the principle of equality of citizens before the law to keep the judges and the chief justice of Pakistan in a position where the independent working of the judiciary could not survive. The fundamental rights, the Islamic concept of administration of justice and independence of judiciary have been jeopardized. The impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 is also an attempt to reduce the powers of the Supreme Court.
The idea of military men presiding over courts runs contrary to a fundamental principle of our constitution: the separation of powers between the executive and the judiciary. The army, for all its pomp and glory, is, in the eyes of the constitution, just an extension of the federal government’s Ministry of Defence.
Being a part of the executive branch of government, in principle, the army should not be exercising ultimate judicial authority, be it over civilians or soldiers. There is logic behind this principle: officers in the executive branch of government are trained to be efficient ‘doers’ rather than nuanced and impartial ‘thinkers’. On account of their training, they make excellent investigators and prosecutors but not confidence-inspiring judges. Because of the army’s strict chain of command and a culture of subordination to seniors, this problem is most pronounced amongst army officers.
It is because of this constitutional principle that over the course of the last century, many countries across the globe, such as Britain (1951), United States (1950), Canada (1952). New Zealand (1953) and Australia (1955) have brought their military tribunals under the oversight of civilian appellate courts. In these countries, military tribunals try military personnel only. Yet, ultimate judicial authority over them now vests with civilian judges. It is unfortunate that instead of catching up with this global trend, Pakistan seems to have resolved to travel in the exact opposite direction.
Then there is the principle of the equal protection of law. How can some civilians be singled out for the rigors of court martial while others continue to enjoy the benefit of due process extended to them in the ordinary criminal courts? Isn’t this discriminatory? True, the military establishment has promised to try only ‘jet-black terrorists’. But, ahead of a full-scale trial, how are ‘jet-black terrorists’ to be told apart from others accused of criminal offences? Would this not amount to conviction before trial, a violation of yet another constitutional principle, the presumption of innocence?
These concerns about the constitutionality of military courts are not novel. In a large number of cases spread over decades, Pakistani courts have already noted the constitutionally suspect statues of military ‘courts’. In 1980 (NLR 1980 Civ. Quetta 873), at the high tide of martial law, the Balochistan High Court struck down Article 212-A of the constitution, added by General Zia to provide constitutional protection to military courts exercising jurisdiction over civilians. Nor have military courts entirely escaped the scrutiny of our constitutional courts, in their dealings with military personnel.
In 1985, the Federal Shariat Court declared the absence of an appellate process under the Army Act un-Islamic and thus unconstitutional. (PLD 1985 FSC 365 upheld by the Supreme Court in PLD 1989 SC 6) The Army Court of Appeals prescribed in section 133-B of the Army Act was brought in as a result of that intervention. In 2009, the FSC issued another order directing the Army Court of Appeals to provide appellants with greater due process. (PLD 2009 FSC 36) Most recently, in 2013, the Supreme Court commuted a death sentence passed by the Army Court of Appeals. The court reasoned that even though it was not formally sitting in appeal over the Army Court of Appeals, it could still set aside the latter’s orders if they had been passed “without jurisdiction”.
The last time military courts were given jurisdiction over civilians in the Sheikh Liaquat Hussain case (PLD 1999 SC 504) and in Mehram Ali case (PLD 1998 SC 1445), the Supreme Court turned them down. This time around the legislation will come wearing the armour of a constitutional amendment. But, in the Pakistani jurisprudence, thanks to the basic structure theory of the constitution, even a two-thirds majority provides no iron-clad guarantee. A few years ago, in the 18th Amendment case, our Supreme Court actually came quite close to striking down a constitutional amendment.
(iii) CONSTITUTION (TWENTY FIRST AMENDMENT) ACT, 2015 AND THE PAKISTAN ARMY (AMENDMENT) ACT, 2015 VIOLATES THE RIGHT TO FAIR TRIAL AND DUE PROCESS OF LAW AS ENSHRINED IN ARTICLE 10-A OF THE CONSTITUTION OF PAKISTAN, 1973.
My Lordship! Article 10-A of the Constitution of Pakistan, 1973 reads as under:-
“10A. Right to fair trial:- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”
Our party is of the firm opinion that the military courts will lead to lenient standards of prosecution, contrary to what is envisioned in the Constitution by sidelining the right to a fair trial and due process and that this will shake the very foundations of the legal system and may render an accused “guilty until proven innocent”.
And by virtue of these amendments as above referred, the constitutional guarantees of a fair trial under Article 10A as introduced in the Constitution through the 18th amendment may not be strictly adhered to.
Now after the aforesaid amendments, the military authorities will arrest, investigate, try and then sit in appeal against their own verdict before the final appeal can be made to the Supreme Court and that this would be the most dangerous aspect of the entire exercise.
It was also wrong to say that the judiciary had failed because they had handed down convictions to nearly 8,000 death row prisoners and that it was not the judiciary’s fault, if these sentences were not carried out and the rulers themselves (Respondent No. 1) did not execute the condemned criminals on the pressure of the USA, the European Union (EU) and the greed for dollars.
In our party opinion that instead of creating a parallel judiciary, the civil prosecution branch should have been strengthened.
We fear that through these amendments, the federal government intended to shift the onus of proving the charge to the accused himself.
It has hitherto been the duty of the prosecution to prove that the accused being charged was guilty of the offence and that courts usually acquit the accused by giving them the benefit of the doubt when faced with weak evidence.
Now what they intended to do was to confer evidentiary value to the opinion of the investigating agency or the confessions of the accused, thus binding trial courts to consider these evidence, which in the normal scheme of things, may not necessarily be admissible in a court of law.
(iv) CONSTITUTION (TWENTY FIRST AMENDMENT) ACT, 2015 AND THE PAKISTAN ARMY (AMENDMENT) ACT, 2015 FOR CREATING MILITARY COURTS IS NOT A WRONG MOVE BUT ULTIMATELY AGAINST THE DEMOCRACY AND THE PARLIAMENTARY SYSTEM.
PAKISTAN should not have the military courts, not in the expanded form envisioned by the military and political leadership of the country, not to try civilians on terrorism charges and not even for a limited period of time.
Military courts are simply not compatible with a constitutional democracy.
In the immediate aftermath of the Peshawar school massacre, politicians and the military leadership rightly came together to respond urgently to the terror threat that stalks this country.
What they did wrong was to decide on military courts as the lynchpin of a new strategy to fight terrorism.
Perhaps with a country convulsed with grief and the PML-N government on weak ground — given that until recently the PMLN party was insisting on dialogue with the Taliban elements behind the Peshawar calamity — there was little resistance to the military’s demand that terrorist suspects be tried in military courts, and presumably summarily executed thereafter.
Perhaps also the full range of opposition political parties present were overawed by the presence of the Army Chief and DG ISI in Peshawar, and those opposed to military courts decided that it was futile to oppose them in the circumstances.
Whatever the thinking of the bourgeoisies political leadership that has brought the country to the verge of amending the Constitution and sundry laws to allow military courts to try terrorism suspects, it was unquestionably wrong.
Belatedly, some conscientious members of the political leadership have begun to speak out, led by senators who are perhaps less encumbered by party discipline than members of other legislatures.
When a new system of so-called justice requires overriding constitutionally guaranteed rights and the independence of the judiciary, surely that is no solution — even to terrorism and militancy.
There is a further problem, one mostly left unsaid: military courts are a populist move, meant to show a frightened public that the state can still be relied on to keep the peace and secure the nation.
Such populism often only begets more populism, leading to more deviations from the democratic path until there is no democracy left, not even in name.
This country has travelled down the path towards authoritarianism and dictatorship too many times, with too many disastrous consequences, to countenance deviations from a constitutional democracy today.
The question that should be asked is why is the criminal justice system so poor at convicting the guilty? There are really just three steps: investigation, prosecution and judicial.
While the courts are often maligned for allowing the accused to walk free, it is at the investigation and prosecution stages that most of the cases are already lost. And where the judiciary is at fault, it is often because of a lack of protection offered to trial judges.
Can those problems not be urgently fixed in Pakistan? Does not a democratic system exist to strengthen and buttress the democratic system? Military courts are certainly not the answer.
Recounting the history of military courts, they were declared unconstitutional by courts of law whenever they were established – in 1977 and in 1999. The lesson to be learnt from history was that in both cases, the prime ministers had subsequently been removed from office. There was no mention of military courts in the Constitution and any amendment to create a room for them would strike at the basic structure of the document and that such logic would give way to the impression that the civilian-led democratic polity had failed and should be replaced.
In our party opinion, the military courts had different standards of proof, offered fewer protections to the accused and when its relatively abrupt systems are applied to the civilian environment, they could lead to great miscarriages of justice. “The country has already seen this in the case of missing persons” and that of “Jam Saqi case” and in many other cases.
That terrorism could not be deterred by setting up military courts, pointing to the power enjoyed by the army in Federally Administered Tribal Areas (Fata) under the Aid of Civil Act, 2011. Powers granted to law-enforcement agencies under the Anti-Terrorism Act (ATA) and the Protection of Pakistan Act were quite wide-ranging, and that instead of going for military courts, there was a need to improve the legal system.
The use of religion by the state to further its own political agenda, the use of religion by religious-political groups to counter the government, and the contribution of the state in the rise of armed extremists were all things that had created enemies.
Under the Zia regime, the state joined the Afghan war, provided safe havens to all kinds of mercenaries; Arabs, Chechens and Uzbeks were allowed in the country and the state failed to repatriate them. And that such people were then allowed to penetrate the civil and military services as well as the political apparatus, etc.
It was still a mystery whether the military courts were being established to fight terrorism or tighten the noose around politicians whereas the establishment of military courts is a case of no-confidence in the judicial system of the country.
“We are going to repeat past mistakes. Today they are indicating civil courts have failed to deliver; tomorrow they might say political dispensation has also failed. They might say thank you very much, [now] pack your (politician’s) bags.” This was categorically stated by a well known democrat Senator Raza Rabbani in the Senate of Pakistan while expressing his views on the aforesaid amendments.
Another Senator Kazim Khan said, “Whenever the PML-N has come to power, military courts have been set up. I would ask Nawaz Sharif not to go back to those [army] he had already left.”
All the parliamentary groups when independently interviewed by the pressman and anchorperson of print and electronic media highly spoke against military courts but while sitting with the Chief of Army Staff General Raheel Sharif, DG ISI Major General Rizwan Akhtar and DG ISPR Major General Asim Saleem Bajwa in the All Parties Conference (APC) held on 3rd January, 2015 (Friday) in Peshawar agreed to pass the bills without any debate in the National Assembly and Senate of Pakistan and surprisingly the spokesperson of the Federation of Pakistan (Respondent No. 1) Mr. Pervaiz Rasheed, Information Minister and spokesman for the Pakistan Army Major General Asim Saleem Bajwa are now openly saying that the “Military Courts is a step towards greatest democracy.” What a ridiculous statement by the spokespersons of Respondent No. 1 and spokesman of the Pakistan Army in a country where there is no Martial Law now but it clearly shows that the military courts are being constituted under the pressure of the army only?
Military Courts cannot overcome the religious extremism as the following factors were responsible for extremism narrated as under:-
(a) The use of religion by the state to further its own political agenda,
(b) the religious political groups also using religion to rival the government and come to power,
(c) the state deliberately contributing to the rise of armed extremists,
(d) the joining of Afghan war under General Ziaul Haq,
(e) the provision of safe havens to the militants by the state,
(f) permission of entry to all kinds of mercenaries, including Arabs, Chechens and Uzbek, in the country,
(g) the failure of the state to repatriate them,
(h) the creation of good and bad Taliban by the state and
(i) the allowance of such elements to penetrate civil and military services and political apparatus, particularly in Zia’s period.
The nut-shell of the above submission is that by giving a greater role of the army in the country with the establishment of military courts, the Respondents and all the bourgeoisie political parties have not learnt any lessons from the past, referring to similar decisions taken in 1977 and 1999 resulting in the ouster of democratic regimes by martial law.
(v) CONSTITUTION (TWENTY FIRST AMENDMENT) ACT, 2015 AND THE PAKISTAN ARMY (AMENDMENT) ACT, 2015 FOR CREATING MILITARY COURTS VIOLATES THE EQUAL RIGHT OF CITIZENS AS ENSHRINED IN ARTICLE 25 OF THE CONSTITUTION OF PAKISTAN.
That the impugned amendments are discriminatory, against principle of equality of the citizens and it was legislated strictly to frustrate the constitutional provisions and presently it was aimed to show hegemony of Military Courts upon those Courts which are functioning under the framework of the Constitution of Pakistan, 1973. The petitioner would prefer the Apex Court to examine the legislation at the earliest and give a ruling whether it is in conformity or ultra-vires of the Constitution of Pakistan, 1973 before it takes effect in view of its repercussions on the fragile Federation of Pakistan.
The 1973 Constitution guarantees equal rights to all Pakistanis, so the ruling clique doesn’t have the right to introduce any amendment to the existing laws which would undermine the spirits of the Constitution.
That also the impugned aforesaid amendments were in conflict with basic clauses of the Constitution. Article 2-A guarantees freedom of the judiciary while according to Article 25, all citizens have equal rights but unfortunately the aforesaid amendments are discriminatory in nature.
Who so ever may be President, Prime Minister, Minister, Chief Justice, Chief of Army Staff or the ordinary citizen, no one is above the law and should not be beyond the bindings from the eyes of justification. The recent parliament’s amendments and resolution should be blocked otherwise in future every government should be free to pass any kind of amendments in Constitution and law purely for their own benefits.
The ruling partly along with its allies had crushed all moral and social values and principles of justice only for its vested interests. All their aforesaid amendments were not only against spirit of Islam but also against the Constitution. It has been mentioned in the Constitution of Pakistan that no law against Sharia would be enacted as all human beings are equal before God. In our party opinion, a criminal whether be a ruler or a layman would be equal to law and no discrimination could be made for its punishment. These newly enacted amendments in Constitution and Pakistan Army Act, 2015 for establishment of military courts are against the decisions of the apex court which declared the military courts as unconstitutional in year 1999 in Liaquat Hussain case.
(vi) CONSTITUTION (TWENTY FIRST AMENDMENT) ACT, 2015 AND THE PAKISTAN ARMY (AMENDMENT) ACT, 2015 FOR CREATING MILITARY COURTS VIOLATES THE RIGHT OF FREEDOM OF SPEECH AND PRESS AS ENSHRINED IN THE ARTICLE 19 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973.
That the aforesaid amendments of the Respondents also fully curtail the freedom of speech and freedom of the press as enshrined in Article 19 of the Constitution of Pakistan, 1973 as after these amendments, the print and electronic media are barred to write and broadcast or air any news or to telecast any interview concerning the Talibans and terrorists during their trial in the military courts whereas the Article 19 relating to the freedom of speech and freedom of the press is according to the Constitution of Pakistan, 1973 reads as under:-
“Article 19. Freedom of speech etc. : Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence”.
The aforesaid amendments and restrictions imposed on the press and print and electronic media is contrary to Article 19. The Article 19 says that only reasonable restrictions as above are to be followed in relation to freedom of press and freedom of speech but the aforesaid amendments and the restrictions in consequence of the above referred amendments imposed on the press is totally in contrary to Article 19.
The Right of Freedom of Press is guaranteed by Article 19. All instrumentalities of State including the Respondent No. 1 are, therefore, supposed to act in a manner which may be conductive to promotion of this object of the Constitution.
The Supreme Court of Pakistan has already charged police officials for manhandling the former Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry and this fact had only come on the surface due to the fact that the media men were allowed the coverage. If the freedom of Press to electronic media and TV news channels was not available (which is now being curtailed during trial of military courts where media is not allowed to enter the military courts) when the police was manhandling the Chief Justice of Pakistan, no one in Pakistan or abroad had come to know the excesses of Pakistani Police upon Chief Justice of Pakistan.
The Holy Prophet PBUH says, “The highest kind of Jehad is to speak upon truth in the face of Sultan that deviates from right path”.
The press is the fourth pillars of the State and, therefore, no restrictions can be imposed legally and constitutionally for the independent functions of the fourth pillars.
The restrictions imposed on the freedom of press by Respondent No. 1 in consequences of the aforesaid amendments are against the principles of trichotomy of powers. That all the four pillars of the state – legislature, judiciary, executive and the press must function within their own scope and there should be no overlapping, interference or domination.
That in a democratic set up, freedom of speech/expression and freedom of press are the essential requirements of democracy and without them, the concept of democracy cannot survive. The people are interested to know what the truth is and what is going on in the war between Taliban and our Army in the North Waziristan or elsewhere.
Freedom of speech and freedom of press are fundamental personal rights and liberties which are corner stone’s of democratic institutions. Both these liberties are the same, being distinguished only in the form of expression. The liberty of the press is not confined to newspapers and periodicals but necessarily embracing pamphlet, leaflets and every sort of publications including electronic media and TV news channels affording a vehicle of information and opinion. Similarly, the right to free speech is not limited to public addresses, pamphlet or word of an individual, but it also embraces every form and manner of dissemination of ideas that appear best- fitted to bring such ideas and views to the attention of populace and to the attention of those most concerned with them.
That free speech and freedom of press are the checks on abuse of Authority, especially Government Authority. The idea powerfully developed by Vincent Blase in a well known Article (‘The checking value in 1st amendment theory” 1977 American Bar Foundation Research Journal, Page 521) is that if those in power are subject to public exposure for their wrongs in the manner exemplified by Journalist’s account of the Watergate Scandal, corrective action can be taken and if the public officials know they are subject to such scrutiny, they will be much less likely to yield to the temptations presented to those with power to act in corrupt and arbitrary ways. When truths about abuse of Authority are revealed, citizens and other officials can take corrective measures. In areas of human like involving choice, what people do is partly depend on what they think will become known. Most particularly, persons are less likely to perform acts that are widely regarded as wrong and which commonly trigger some sanction or public rage. Thus, the prospect of truth being discovered influences what happens; public scrutiny deters. A liberal democracy rests ultimately on the choice of its citizens. Free speech can contribute to the possibility that they, and their representatives can grasp truth and that is significant for political life. It has long been assumed that a better informed citizenry will yield forming of better Government and better political decisions.
That obedience to the Constitution precedes submission to laws made there under and no Government, Federal or Provincial, can enforce a law without first fulfilling her own Constitutional obligations. The petitioner believes that the Respondent No. 1 have bypassed the Constitution of their own convenience. In short, any action under any law would not be in accordance with the Constitution unless this Court has spelt out the Articles to enforce the Fundamental Rights.
(vii) HISTORY OF CONCEPT OF EQUALITY BEFORE LAW.
My Lordships! Holy Quran says; “if Ye Judge between mankind, that Ye Judge justly”. The Holy Prophet (PBUH) proclaimed; “people are all equal as the teeth of a comb”.
In this context, the extract from last Sermon of the Holy Prophet (PBUH) is landmark in the history of mankind which is reproduced hereunder:-
“The concept of equality amongst the mankind was introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached and practiced equality throughout the life and sermon delivered on the occasion of last Haj performed by the Holy Prophet (peace be upon him) is the first landmark in the history of mankind. It was clear for all times to come that there is no difference amongst the individuals on the basis of race, colour and territory. The relevant portion reads as under: –
The Holy Prophet (peace be upon him) said in his address at the Hajjat-ul-Wida, the last Haj, performed by him, that ………O! people, hear me, your Lord is one and your father is one. No Arab has any superiority over a non-Arab, nor any non-Arab over an Arab nor any white man over a black man, nor a black man over a white man save in respect of piety and fear of Allah’.”
My Lordships! The source of insertion of Article 25 in the Constitution of Pakistan, 1973 is on the basis of the aforesaid history highlighted hereinabove. Similarly our constitution also ensures dignity of every individual as is evident from Article 14 of the constitution. See:-
i) Francis Corolie Mullin’s case (AIR 1981 SC 746)
ii) A.K. Roys’ case (AIR 1982 SC 710)
iii) Bandhu Mukti Moracha’s case (1984 SC 802)
iv) Bachan Singh’s case (AIR 1982 SC 1235)
v) Weereja Chaudhry’s case (AIR 1984 SC 1099)
vi) Suo Motu Constitutional Petition: (1994 SCMR 1028)
It is a settled maxim that the very concept of fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law. See Jibendra Kshore’s case (PLD 1957 SC 9) but here in the above referred amendments, the right of fair trial and due process of law as guaranteed to any person, criminal or hardened terrorists under Article 10-A of the Constitution of Pakistan, 1973 is now being totally denied after the formation of the Military Courts.
It is also settled principle of law that where a statute is ex facie discriminatory but is also capable of being administered in a discriminatory manner and it appears that it has actually being administered to the detriments of a particular class in particular, unjust and oppressive manner then it has been void ab initio since its inception.
(viii) THE IMPUGNED PAKISTAN ARMY ACT, 2015 IS ULTRA-VIRES OF THE CONSTITUTION AND AGAINST THE ARTICLE 8 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973.
The Pakistan Army (Amendment) Act, 2015, has been passed by the Parliament in sheer violation of the basic spirit of the Constitution, which is also against the basic norms of the democratic form of government and injunctions of Islam and also against the fundamental rights of equality of citizens as enshrined in the Constitution of Pakistan, 1973.
That by introducing and enacting the said law by the respondent’s government, the corrupt elements, which make their way through to the power corridors, will be protected and there will be no institution to check their malafides, illegalities and ulterior designs.
That aforesaid amendment was made to violate the constitution and the Supreme Court judgments.
It is a mala-fide act indeed–Article 190: [All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court]—thus void in the inception. There is some argument about defense in the legislature but all these arguments go against the independence of judiciary and fundamental rights of citizens.
(ix) THIS LAW CAN BE STRUCK DOWN BY SUPREME COURT OF PAKISTAN.
The apex court could strike down a law only after examining its vires, if the law impinged on the fundamental rights guaranteed under the Constitution or militated against the independence of judiciary, aimed at curtailing the authority of the judiciary.
The nut-shell of the above discussion is that the impugned amendments are against the Articles 2-A, 4, 5, 8, 9, 10, 10-A, 14, 17, 19, 25, 175 and 190 of the Constitution which ensured independence of judiciary, free and fair trial, fundamental rights, freedom of press and equality of citizens before the law.
(IV) PRAYER IN PETITION:-
In view of the above, it is, therefore, respectfully and graciously prayed that this learned Court be pleased to kindly interfere to exercise its constitutional power at this critical juncture in the history of this country, to defend and protect the Constitution and to provide the following remedies:
1. Declare the newly impugned Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 for creating military courts as ultra-vires, null and void as it is against the basic structure of the 1973 Constitution and it is in violation of Articles 8, 9, 10, 10-A, 14, 17, 19, 25 and also against the Articles 2-A, 4, 5, 6, 175 and 190 of the Constitution of Pakistan, 1973.
2. Declare the assent given by the President of Pakistan as invalid and without any legal effect.
3. Any other remedy for the supremacy of the Constitution and the law, which this Honourable Court deems fit and appropriate in the facts and circumstances of the case, may also be granted and this petition may kindly be accepted. This prayer is made in the interest of justice.
Drawn up and filed by:
(Engineer Jameel Ahmad Malik),
Chairman of Communist Party,
Communist Party Secretariat,
1426-Fateh Jang Chowk,
Dated:- 19th January, 2015.
LIST OF BOOKS:
1. The Constitution of the Islamic Republic of Pakistan, 1973.
2. Constitution (Twenty One Amendment) Act, 2015.
3. Pakistan Army (Amendment) Act, 2015.
4. PLD 2012 SC 923
5. PLD 2010 SC 61 & 265
6. PLD 2009 SC 879
7. PLD 2009 FSC 36
8. PLD 2006 SC 697
9. PLD 2005 SC 719
10. PLD 2000 SC 84
11. 2000 SCMR 751
12. PLD 1999 SC 504
13. 1999 SCMR 382 & 1379
14. PLD 1998 SC 161, 1263 & 1445
15. PLD 1996 SC 324
16. PLD 1994 SC 105 & 621
17. PLD 1993 SC 341 & 473
18. 1991 SCMR 1041
19. PLD 1989 SC 6
20. PLD 1988 SC 416 & 719
21. PLD 1985 FSC 365
22. NLR 1980 Civ. Quetta 873
Certified that this is the first petition in the Supreme Court on the subject.
(Engineer Jameel Ahmad Malik)