SC ‘tolerated’ military courts due to war-like situation: SM Zafar

Top constitutional expert and former federal law minister SM Zafar on Friday said he was of the view that the preamble should remain a forerunner of the Constitution and not the one which could undermine any basic provision.
He opined that the Supreme Court tolerated the military courts because of a war-like situation in the country.
Zafar in an interview with The News at his chamber was talking extensively on the constitutionality of the 21st Amendment, establishing military courts for the trial of terrorists.
The former PML-Q senator also spoke on the report of Judicial Commission tasked with proving systematic rigging in 2013 elections as well as the decisions of three election tribunals disqualifying the ruling party's candidates.
Zafar observed that the Supreme Court full-bench judgment upholding the establishment of military courts was notable on two points: firstly, on the issue of basic structure and, secondly, the establishment of military courts for the trial of civilians being in conflict with fundamental rights and the independence of judiciary.
"The basic structure theory was debated a long time before the inception of Pakistan and originated from India. This is the final judgment in which the full bench has come to the conclusion that our Constitution has no basic structure and the Parliament being sovereign can amend the Constitution and whatever amendments they make are unquestionable. The minority judgment is that our preamble is different from those of other countries' constitutions in as much as it has not become a part of the Constitution and there are certain provisions which are mandatory, particularly those provisions relating to the independence of judiciary."
According to Zafar, a learned judge of the Supreme Court, who did not agree with the view, said that our preamble is as common as other countries and there is nothing historically different or important therein. As far as mandatory provisions are concerned,

there are many, including the one that the sovereignty of the State shall be exercised by the chosen representatives, which include none of them, not even the judiciary.
"I am personally of the view that the preamble should remain a forerunner of the Constitution and not the one which can undermine any basic provision. This has been the constant view in Pakistan and abroad. As far as military courts are concerned, the minority judgment is that the establishment of a military court not part of the judicial system is a deviation from independence of judiciary. Judicial power must be exercised by the hierarchy of the judicial system which is headed by the Chief Justice of Pakistan."
"Military courts are a branch of the executive and not part of the judicial system. The procedure in the military court is not that transparent and the judges are not trained in judicial norms. It goes against the fundamental right to fair trial of every citizen. Other judges have not accepted this argument on the ground that the classification in 21st Amendment has been restricted to such a miniscule population that it cannot be called violation of fundamental rights of the people of Pakistan, who are equally entitled that the State should secure them. So the fundamental right of the majority versus the minority has been brought into the debate."
According to Zafar, the other reason more potently given is that those who have denied the sovereignty of Pakistan and are against the State and its constitutional government cannot be considered citizens. Not being citizens, they are not entitled to same protection and can be treated as alien enemy. This has a sunset provision and would automatically bring it to an end after a period of two years. This is a practice that has in part made the bench accept military courts and even this was accepted with reservation and reluctance.
The full bench with majority has unanimously upheld that the reference to the military court can be challenged at the initial stage to show that the person concerned does not come within the classification. And more importantly that after a judgment given by the military court, the aggrieved party can seek a judicial review before high court as well as Supreme Court on the ground of bias and unfair trail or coram non-judice (before a court lacking the authority to hear and decide the case in question). Some convictions have already been challenged before high courts.
"My understanding of the judgment is that military courts have been 'tolerated' by the Supreme Court on account of war-like situation, particularly in the northern areas of Pakistan. And there are many examples of countries confronting similar situation where extraordinary measures have been adopted not only by the executive but have also been tolerated by the judiciary. In America, the Patriot Act and the Peers Council in UK while dealing with the Irish Republican Army (IRA) adopted extraordinary measures that can be used to support the judgment upholding military courts in Pakistan."
Referring to the verdicts of election tribunals and the Judicial Commission report, the constitutional expert said the functions of the commission and a statutory election tribunal were very different.
"The commission can only make inquiries and they do not go for investigation as they do not have the jurisdiction on intelligence agencies and police. The election tribunals, in contrast with the commission appointed by the Supreme Court regarding the rigging of elections, proceed on the basis of evidence that appears before them by both the parties and comes to not a report, which a commission gives, but to a judgment. However, a political party of Pakistan combining the effect of the Judicial Commission report and the decisions given by three election tribunals upsetting the elections - in which the PML-N candidates had turned out to be successful - proves its demand that the results of the 2013 elections are not reliable."
"The commission acknowledged that there were certain lapses in the election process but they did not find that there was any state machinery involved in it which created those lapses. The election tribunals likewise came to the conclusion that there were irregularities committed by the Election Commission staff whether the candidate or the party with the State backing them was causing these irregularities is not proven. My conclusion is that the combination of both, the opinion and judgments, does not conclude that the elections of 2013 should be set aside."
"The word 'dhandli' (rigging) does not exist in the Constitution or in the election rules or in the code of conduct of elections. It is a political idiom. What is available in the election law are misconduct of the candidate and irregularities of the staff. What seems to have been decided both in the opinion of the commission and in the three judgments of the tribunals is that there is no misconduct and there are only irregularities. It is true that in the word 'dhandli, both are covered, however."