August,10,2015: In a landmark ruling, Pakistan's Supreme Court today dismissed petitions against setting up controversial special military courts for speedy trial of militants following the Peshawar school carnage that killed over 150 people, mostly children.
A 17 judge bench of the Supreme Court of Pakistan (SC) on Wednesday by majority of 11 against 6 upheld the 21st amendment to the Constitution of Pakistan providing for the establishment of military courts in Pakistan. The Court by a comprehensive majority of 14 against 3 also dismissed petitions challenging the 18th amendment to the Constitution. The 17-judge bench was presided over by the Chief Justice of Pakistan Nasirul Mulk.
The parliament adopted the amendment and the Pakistan Army Act, 1952 in January to set up special courts after the deadly Taliban attack on a military school in Peshawar on December 16 that killed over 150 people, mostly children.
The military courts had awarded death sentence to six accused and life imprisonment to one when their working was suspended on April 16 by the Supreme Court after taking up petitions.
The hearing was completed on June 26 but the court had reserved the judgement.
Earlier, the court had combined 31 petitions that challenged the powers of parliament to legislate on various issues. There were 15 petitions against the 21st amendment.The petitioners’ contention principally was that there are certain basic features of the Constitution which are unamendable and that notwithstanding ostensible conferment of unlimited power on the Parliament by clause (6) of Article 239 and ouster of jurisdiction of the Courts by clause (5) thereof, the Parliament is not empowered to bring about changes in the basic structure of the Constitution.
The arguing Counsel made a comparison of the said Amendment in Article 239 with the amendments made through the 42nd Amendment in Article 368 of the Indian Constitution and contended that the purpose of the amendment was the same i.e. to oust the powers of the Supreme Court to call into question any amendments made in the Constitution; that the said 42nd Amendment of the Constitution of India was introduced to nullify the effects of annulment of constitutional amendments on the ground of them being violative of the basic structure in the cases of Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1641) and Indira Nehru Gandhi v. Shri Raj Narain (AIR 1975 SC 2299).
Among other decisions, the judgments rendered the Supreme Court of India in the cases of Advocates-On Record Association v. Union of India (AIR 1994 SC 268) and In Re: Presidential Reference (AIR 1999 SC 1) were relied on by Mr. Hamid Khan to contend that the judiciary had declared and affirmed the independence of Judiciary from Executive as necessary to ensure that the tendency of other organs of the state to overstep their Constitutional limitations remain under check.
Relying upon the basic structure theory, as developed and expounded upon by the Indian Supreme Court, learned Counsel argued that there is a basic structure to the Constitution of Pakistan as well, which has been affirmed by the Superior Judiciary of Pakistan in various cases. That the idea of basic structure prevents the power to amend from turning into power to destroy the Constitution. He submitted that the Doctrine of basic structure was an academic thesis introduced by Professor Dietrich Conrad, a German professor of Law, which was adopted by the Indian Supreme Court in Kesavananda Bharati (supra) and affirmed in later judgments.
He referred to the following Indian Supreme Court judgments in which Professor Conrad‘s theory of unamendable basic structure of the Constitution was followed in India:
Sajjan Singh v. The State of Rajasthan (AIR 1965 SC 845)
I.C. Golak Nath and others v. State the Punjab and other (AIR 1967 SC 1643)
Kesavananda Bharati (supra)
Indira Nehru Gandhi (AIR 1975 SC 2299)
Minerva Mills Ltd. v. Union of India (supra)
Waman Rao v. Union of India (AIR 1981 SC 271)
I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861)
On the contrary Govt. Cl.argued that the Parliament‘s power of amendment of the Constitution was in the nature of ―Constituent Power‖, on which no limitations whatsoever could be placed; that had the framers of the Constitution intended it to be so, they would have placed such limitations themselves upon the powers of the parliament. In this context he also argued that when an Act of the Parliament amending the Constitution is passed, the Act becomes part of the Constitution; that all provisions of the Constitution are of equal importance and that Fundamental Rights have not been given any primacy over other provisions of the Constitution.
Accordingly Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman ruled that there are no limitations, express or implied on the powers of the Parliament to amend the Constitution and the amendments brought about in exercise of such power are not liable to be challenged on any ground whatsoever before any Court.
They further said that as it lacks jurisdiction to strike down any amendment in the Constitution it is not necessary to examine the grounds on which the 18th and the 21st Amendments have been challenged.
Today's verdict is the last major decision by Chief Justice Mulk who is set to retire on August 16.
The decision will lift the ban on military court which can now hold speedy trial of militants involved in heinous crimes.
Prime Minister Nawaz Sharif welcomed the Supreme Court's decision, saying "the historic verdict" will have a positive impact on the future of the country as it strengthened the government's war against terrorism.
"For extraordinary circumstances, extraordinary steps are required. With this decision, the war against terrorism will be strengthened and terrorists will be discouraged," Sharif said in his address to the National Assembly.
He also hailed consensus in the country against militancy and said that the Supreme Court's decision will add to the efforts against terrorism.