ISLAMABAD - The Supreme Court Friday reserved its judgment on 18th and 21st amendments case, declaring that the judges want terrorists punished without undue delay and religious extremism curbed.
The court also stressed some rules must be devised to decide which court hears what terrorism case, instead of practicing pick and choose method that could lead to delays in making decisions and allow political interference.
The Full Court headed by Chief Justice Nasirul Mulk has been hearing the constitutional petitions of Supreme Court Bar Association, Pakistan Bar Council, Lahore High Court Bar Association and 11 other bar councils and associations against the two constitutional amendments.
One of the key areas of focus in Friday’s proceeding was Article 63A of Constitution, which binds lawmakers to follow the decision of their party heads in legislation. Part of the bench expressed concern over taking away the independence of the MPs through this law while some judges appeared to support it, saying the law was formed in the background of large-scale desertions and formation of forward blocs in political parties that undercut democracy.
Advocate Generals (AGs) of all the provinces and Islamabad adopted the arguments of the Attorney General of Pakistan (AGP). The KP AG said the provincial government supports the 21st Amendment, under which the special military trial courts to hear high-profile terrorism cases have been formed.
During the proceeding, Justice Qazi Faez Isa said, “We (judges), like others, also want that terrorists be punished as soon as possible and the religious extremism curbed.” He, however, questioned whether all the religion related cases would directly go to the military courts.
Attorney General Salman Butt replied that Article 199 of Constitution addresses this question. He said there are different kinds of courts - like sessions court and the courts set up under Pakistan Protection Act, and the government has power to choose any destination for trial.
Justice Qazi Faez observed that federal government has retained the power to transfer the cases to the military courts, which suggests there would be pick and choose. This could delay action against terrorists and make room for political interference, he added. “These devices are slowing down (the process),” he remarked.
Justice Faez asked how it is justified to send any case to any particular forum. The attorney general, without explaining, said its reply is given in the Section 26 of General Clause Act. Justice Jawwad S Khawaja said the apex court is also receiving many cases of terrorism and asked if these cases should go to Anti-Terrorism Courts or normal courts. The chief justice urged the need for a proper legal procedure for deciding the destination of different terrorism case.
Raising another important issue, Justice Jawwad inquired whether the sentences awarded by the military court would be subject to judicial review. But, the AGP did not respond to it.
When the attorney general resumed arguments on Article 63A of Constitution, he contended that there is similar provision in the Indian constitution in Article 102, 10th Schedule. Justice Saqib inquired whether it was part of the original draft of the Indian constitution or was added later. The attorney general replied it was inserted through 52nd amendment.
Justice Qazi Faez Isa asked the AGP that he had not responded to his queries about the concept of party heads deciding on behalf of the parliamentarians. He said that under this law even a person who is alien to parliament and not a member of it can take any decision on behalf of his party MPs. He inquired from the AGP if he was in support of it and what was federation’s stance in this regard.
The attorney general stated the word ‘party-head’ is defined in the explanation of Article 63A. Justice Saqib Nisar remarked if Quaid-e-Azam, being a Governor General and not a member of the parliament, controlled his party from the outside then whether “we would have the same (disproving) approach for him as well”. He added there are certain charismatic leaders who attract people and their parties get votes because of them.
Justice Asif Saeed Khan Khosa observed that the need of this article is in view of uninterrupted democracy. He said a dictator (Musharraf) had imposed the condition of bachelor’s degree for contesting elections. The judge observed that even a respected political figure like the late Nawabzada Nasrullah could not have contested elections under this rule. Justice Saqib remarked if the BA condition had been at the time of Quaid-e-Azam then he would also have been disqualified, as he had done Bar-at-Law and didn’t have a BA degree.
Justice Khosa stated during dictators eras many leaders were either forced to leave the country, for example, PML-N leaders (during Musharraf rule), or they preferred self-exile - like Benazir Bhutto and Altaf Hussain. In their absence, he said, different groups were formed in their parties. He observed when changes are made in the constitution there is always some background to it. The judges said Article 63A was necessitated because of defections and fragmentation of political parties, and as the democracy gets strengthened, perhaps, this would be abolished. The chief justice also observed that Article 63A was inserted because so many forward blocs emerged in the political parties.