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.