Pak SC upholds setting up of military courts to try civilians; says vires of constitutional amendment can be examined

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.Pakistan’s Parliament had passed the 21st Amendment extending the jurisdiction of the Military Courts to try certain class of civilians after Taliban gunmen massacred 134 children at the Army Public School in Peshawar, last year.Parliament’s move to create special courts had sparked concern amongst human rights activists and in April a group of lawyers had approached Pakistan’s Supreme Court challenging the said 21st constitutional amendment.The 18th Amendment to the Constitution provided for the establishment of a judicial commission and prescribed a new procedure for the appointment of judges of superior courts.However the Supreme Court vide an interim order reported as Nadeem Ahmed, Advocate v Federation of Pakistan (PLD 2010 SC 1165) referred the matter of appointment of judges back to Parliament for re-examination along with its proposals to enable it to re-examine it in terms of the suggestions made by the SC.Later the Parliament brought the 19th Amendment by accepting almost all the proposals and incorporating in the Constitution as suggested by the Supreme Court.Altogether a total of 31 constitutional petitions were taken up by the court, of which 16 petitions were regarding 18th Amendment, while the rest pertained to the 21st amendment.The petitions challenging the 18th and 21st Amendments to the Constitution were clubbed and heard together as the two sets of cases involved a common constitutional question as to whether there are any limitations on the powers of the Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment?The focus of this report will be essentially on the arguments canvassed on the basic structure doctrine (with reference to Indian case laws) and how the Court dealt with the same in its judgment.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.Mr. Hamid Khan Sr. ASC appearing on behalf of the Lahore High Court Bar Association (LHCBA) and the Lahore Bar Association 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...

Pak SC upholds setting up of military courts to try civilians; says vires of constitutional amendment can be examined

Ajith. S

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