Dawn: December 1, 1998

Supreme Court starts hearing of MQM's petition
Bureau Report


ISLAMABAD, Nov 30: The decision of the federal government to establish military courts in Sindh was challenged in the Supreme Court on the basis that setting up of such courts to try civilians was beyond the scope of Constitution.

"By setting up military courts to try all citizens (even if they are not members of the armed forces) the government has established a parallel system of judiciary", the petitioner stated.

Sheikh Liaquat Ali, MNA and parliamentary leader of MQM in National Assembly, in his petition under Article 184(3) of the Constitution prayed the apex court to declare promulgation of ordinance called the Pakistan armed forces( Acting in aid of civil Power) as ultra vires and without lawful authority.

Prominent lawyer Mohammad Akram Sheikh, former president of the Supreme Court Bar Association, will appear for the petitioner. The Constitution visualises a clear trichotomy of powers in accordance with all democratic civilised system of law, it was stated.

The petitioners stated that there were numerous examples in the history of Pakistan that when the armed force were forced to assume authority over any area in Pakistan, the army had been forced to assume entire power of rule to the exclusion of a dependent and effective administration. "The reliance on army of Sikandar Mirza, Ayub Khan and Z.A. Bhutto at the fag end of their arrogant regime are examples which should not easily be ignored," the petitioner reminded.

"The federation," he stated, "has chosen to treat the Province of Sindh as if it was some kind of colony. The same callous errors are being committed which had been committed against the people of former East Pakistan."

"The Constitution does not countenance the establishment of any court which are not subordinate to the superior court i.e. the high courts and Supreme Court of Pakistan."

The petitioner stated that superior court have repeatedly held that there couldn't be any parallel system of judiciary and also that the executive had no authority to set up any system of judiciary which was not subject to the superintendence and control of the superior courts as visualised in Article 203 of the Constitution.

He stated that setting up of military courts to try civilians was clearly beyond the scope of the Constitution. The matters regarding which any court or tribunal other than ordinary court could be set up were laid down in Article 212 of the Constitution, he stated.

This Article (212) as well as the entire Constitution nowhere visualized that there could be any military courts to try ordinary citizens. "The scheme of the Pakistan Army Act, 1952 itself is that it applies only to person "subject to the Act" who are defined in Section 2 of the said Act."

The petitioner further stated that any amendment to enlarge the scope of Pakistan army, air force and navy acts to include within its ambit ordinary citizens would be violative of Article 2-A, 175 and 203 of the Constitution.

He further submitted that federal government had acted contrary to the pronouncements of the superior courts regarding exercise of judicial powers by the Armed Forces.

"The armed forces could only act in aid of the civil powers and not act in displacement of the civil powers."

He further stated that establishment of military courts in Sindh was against the principle of equal protection of law to the people of Sindh.

While the citizens in other provinces have access to ordinary law, the citizens of Sindh have been placed under the jurisdiction of military courts.

He further stated that procedure of military courts envisaged in the ordinance was unfair. "Section 4 of the ordinance visualized that a sentence shall be passed within three days.

"The appeal against the same shall be preferred also in three days and the further appeal shall be decided also in three days." This procedural structure on its very face is contrary to the rights of citizens in Sindh as guaranteed by Article 25 of the Constitution."

He further stated that the entire procedure for trial of criminal offences prescribed in the impugned ordinance did not even remotely satisfy the requirements of due process of law.

The petitioner further contended that the act of the federation of promulgating the Ordinance setting up military courts and calling in of armed forces in the Sindh province were against the spirit of federalism.

"These acts create an unavoidable impression that the people of Sindh are not entitled to be governed by their own legislature, their own executive and are also not entitled to enjoy the protection of ordinary courts."

The petitioner stated that the ordinance amounted to a statement of no confidence by the government against the judiciary of the Sindh province.

The petitioner has prayed the court to declare the acts of the federal government of setting up military courts in the province of Sindh to be acts without lawful authority. To declare Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance to ultra vires of the Constitution.

Complete text of the Petition