This article makes some relevant observations to the topic of this thread:
What SC said about military courts in 1999 - thenews.com.pk
What SC said about military courts in 1999
Usman Manzoor
Tuesday, December 30, 2014
From Print Edition
ISLAMABAD:
Though the setting up of military courts has been dubbed by many as the need of the hour, yet the political elite has perhaps forgotten what the Supreme Court in its landmark judgment in 1999 had stated while declaring the then military courts unconstitutional and having being established devoid of any logic.
The Supreme Court, in its judgment PLD 1999 Supreme Court 504, handed down by Ajmal Mian, CJ and other judges namely Saiduzzaman Siddiqui, Irshad Hasan Khan, Raja Afrasiab Khan, Muhammad Bashir Jehangiri, Nasir Aslam Zahid, Munawar Ahmed Mirza, Mamoon Kazi and Abdur Rehman Khan,
had stated in 1999 that a parallel judicial system cannot be allowed in the country nor does the Constitution allow it.
The apex court had said that “no patriotic Pakistani can have any sympathy with terrorists who deserve severe punishment, but the only question at issue is, which forum is to award punishment i.e. whether a forum as envisaged by the Constitution or by a military court which does not fit within the framework of the Constitution. No doubt that when a terrorist takes the life of an innocent person, he is violating Article 9 of the Constitution, but if the terrorist, as a retaliation, is deprived of his life by a mechanism other than through due process of law within the framework of the Constitution, it will also be violative of Article 9.”
The judgment reveals that “no circumstances existed in the country which indicated the breaking down of the judicial organ, necessitating the establishment of military courts. It is imperative for the preservation of the state that the existing judicial system should he strengthened and the principle of trichotomy of power is adhered to by following, in letter and spirit, the constitutional provisions and not by making deviation therefrom on any ground whatsoever.”
It further said:
“The contention was that establishment of military courts is a temporary phenomenon necessitated by the grave situation created by the terrorists in the city of Karachi and, therefore, establishment of these courts should not be treated as a displacement or substitution of normal judicial process which will stand revived as soon as the present situation is brought under control. On these premises, it was further contended that the setting up of military courts in Karachi be viewed in this perspective and treated as a step to support or revamp the judicial system which had lost its effectiveness in the prevailing circumstances.
A government established under the Constitution must not deviate from a constitutional path and must find solution to all its problems within the framework of the Constitution. Therefore, to justify the establishment of military courts, support must be found from the provisions contained in the Constitution.”
Without having an independent judiciary, the fundamental rights enshrined in the Constitution will be meaningless and will have no efficacy or beneficial value to the public-at-large, the judgment further said. The following guidelines were provided by the Supreme Court to achieve the required objective:
“(i) Cases relating to terrorism be entrusted to the special courts already established or which may be established under the Anti-Terrorism Act, 1997 or under any law in terms of the judgment of Supreme Court in the case of Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445);
(ii) One case be assigned at a time to a Special Court and till judgment is announced in such case, no other case be entrusted to it;
(iii) The concerned Special Court should proceed with the case entrusted to it on a day-to-day basis and pronounce judgment within a period of 7 days as already provided in Anti-Terrorism Act, 1997 or as may be provided in any other law;
(iv) Challan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court;
(v) An appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal;
(vi) Any lapse on the part of the investigating and prosecuting agencies shall entail immediate disciplinary action according to the law applicable;
(vii) The chief justice of the high court concerned shall nominate one or more judges of the high court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines;
(viii) That the Chief Justice of Pakistan may nominate one or more judges of the Supreme Court to monitor the implementation of the guidelines. The judge or judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court;
(ix) That besides invoking aid of the armed forces in terms of sections 4 and 5 of Anti-Terrorism Act, 1997, the assistance of the armed forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the presiding officer, advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.”
The judgment added that “Supreme Court observed that Court is conscious of the fact that the law and order situation has deteriorated and that the criminal instinct and propensity has penetrated all walks of life so much so even some of the personnel of state functionaries/ agencies, who are entrusted with the duty to protect life, property and honour of citizens, either themselves actively participate in the commission of heinous crimes or they provide protective umbrella to the criminals. Their credibility has been denuded to the extent that victims of crimes usually do not approach them for help and protection to which they are otherwise entitled to as a matter of right under the Constitution. Keeping in view the situation, the offenders, accused of heinous crimes, should not be allowed to escape punishment on mere technicalities if the Court is otherwise satisfied about their guilt.
“A weak agency for detection of crimes and inefficient machinery for prosecution are, inter alia, the cause of delay in disposal of criminal cases and higher percentage of acquittal orders. No doubt, that delay also occurs in disposal of criminal cases on account of lapses on the part of some of the presiding officers, but the main reason seems to be heavy pendency which warrants increase in the strength of the Courts. This has to be streamlined and made more efficient the agency for detection of crimes, the machinery for prosecution and the Courts in order to have better deterrent effect on criminals.
“Contention was that since the military courts dispose of cases quickly and award severe punishments, it was a very effective deterrent factor against commission of crimes hence the convening of military courts validity held, weak agency for detection of crimes and inefficient machinery for prosecution were, inter alia, the cause of delay in disposal of criminal cases and higher percentage of acquittal orders. Delay also occurred in disposal of criminal cases on account of lapses on the part of some of the Presiding Officers, but the main reason seemed to be heavy pendency, which warranted increase in the strength of the courts. Situation had to be, streamlined and made more efficient the agency for detection of crimes, the machinery for prosecution and the Courts in order to have better deterrent effect on criminals.”
