LAHORE - Jurists have expressed conflicting views over the Supreme Court verdict which upheld 21st Constitutional Amendment carried by the Parliament in January last to allow the Sharif government to establish military courts for speedily trying terror cases and other heinous crimes.

The amendment was tabled in the Parliament after the government evolved consensus on it.

The legal fraternity of the country has been holding a significant place in opinion making on the government decisions regarding constitutional matters since the time they gained success in the movement launched by them for the independence of the judiciary after sacking of the then chief justice of Pakistan, Iftkhar Muhammad Chaudhry. The passage of the 21st Amendment had annoyed majority of lawyers who feared military courts would damage the fundamental rights of the citizens enshrined in the Constitution.

Over two dozen petitioners, including Pakistan Bar Council and the high court bar associations of Lahore, Karachi and Peshawar, had moved the apex court which upheld the Parliament decision, frustrating cases of the bars and others. Pir Masood Chishti, president, Lahore High Court Bar Association, was not satisfied with the decision and said the bar would meet soon to decide on moving the apex court to seek review of the verdict as they believed setting up of the military courts would vitiate independence of the judiciary and authority of the Constitution, paving way for a parallel judicial system.

However, Muhammad Akram Sheikh, former president, Supreme Court Bar Association, endorsed establishment of the military courts on the grounds of loss of human lives caused by terrorists and hardened criminals and failure of regular courts to rise to the occasion. Sheikh who also served as an ambassador-at-large during the first Nawaz Sharif government in 1997 said the military courts , however, did not provide a permanent solution to the problem, so imperative need was improvement in the existing criminal justice system. An independent judiciary, he said, was a fundamental part of the basic structure of the Constitution, but an extraordinary step became necessary when very foundations of the country were being rocked by nefarious elements. As such the SC decision corresponded with the need of the hour, he said, adding the idea of setting up military courts was not new as they also existed in the past. Finding another positive feature in the detailed judgment, Sheikh said such courts would whip up the investigating agencies and the prosecution to complete their work properly and promptly for quick decisions of the cases which otherwise continued to linger on for years before the ordinary courts due to their sloth. As to the split decision by the bench that heard the case, he said it evinced the judiciary was more independent than it was in the past.

Former attorney general and ex-judge of the Lahore High Court, Malik Qayyum, while finding the decision highly disappointing, said it was a pity that military courts were set up through a constitutional amendment.

He said the perception was wrong that ordinary courts had failed to deliver and observed investigation and prosecution were actually responsible for the failure of our criminal justice system by delaying production of witnesses and completing challans. Instead of setting up military courts , attention should be paid to improvement in the two departments, otherwise the government would be forced to continue with the military courts on permanent basis at the cost of the existing system, he observed.

The former judge also noted the apex court had validated the military courts once again on standpoint of doctrine of necessity which had been ‘buried’ through the SC decisions over the last years.

To a question that military courts also exist in America, Malik Qayyum said they were set up through Patriotic Act and not through a constitutional amendment, only for trying the foreign nationals who commit heinous crimes.

Abid Hassan Manto, a senior jurist and ex-president of SCBA, was also not in favour of military courts and observed the dissent of six judges in the decision meant the same would be hard to command due importance among the lawyers for the purpose of reference in law cases. He added the military courts would hardly be able to protect rights of citizens.