BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN

BEFORE THE HONORABLE SUPREME COURT OF PAKISTAN

(ORIGINAL CONSTITUTIONAL JURISDICTION)

COURT PETITION NO --------/1998

Sh. Liaquat Hussain son of Sh. Hamid Hussain,
Member National Assembly from Sindh
R/o. A/21 Khudadad Colony
Kashmir Road, Karachi.

Petitioner

Versus

The Federation of Pakistan through
the Secretary Ministry of Law, Justice
Human Rights & Parliamentary Affairs,
Islamabad.

Respondent

PETITION UNDER ARTICLE 184(3) OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN. 1973.

The petitioner states as follows:

1. The petitioner is a citizen of Islamic Republic of Pakistan and is domiciled in one of as federating units, the Province of Sindh. The petitioner is a member of the National Assembly (M.N.A), elected from a Constituency in the Province of Sindh.

2. The petitioner has the right to enjoy the protection of the Constitution. He also has the right and obligation as an M.N.A. to employ all lawful means to protect his own interests as a citizen and also the interests of the people who he was elected to represent as a Senator. The petitioner is aggrieved by the promulgation of the Pakistan Armed Forces (Acting Aid of the Civil Power) Ordinance, 1998, being Ordinance XII of 1998 notified in the Gazette of Pakistan on 20-11-98 ("The Ordinance"). The petitioner is further aggrieved by the establishment of Military Courts in the Province of Sindh. The basis of the grievance is set out in greater detail in the paragraphs that follow.

3. The Government of Pakistan on 28-5-98 made a promulgation of Emergency under Article 232 of the Constitution. In purported exercise of consequential powers, the Government acting under Article 233(2) of the Constitution suspended the enforcement of the fundamental rights of the citizens. This act of the Government came up for review before this honorable court in exercise of its original jurisdiction under Article 184(3) in the case titled Farooq Ahmed Khan Leghari Vs Federation of Pakistan. On 27-9-98 this honorable court by a short order of that date was pleased to hold, in para 3 of the said order that suspending the enforcement of the fundamental rights was an act without lawful authority and of no legal effect. In para 4 the honorable court reserved to itself the power to review/re-examine the continuance of emergency at any subsequent stage.

4. Although the honorable court in its orders referred to above had in unequivocal terms declared that there was no justification for suspension of fundamental rights consequent to promulgation of emergency, however, strangely enough, the Federation has chosen to achieve practically the same object (suspension of enforcement of fundamental rights through the High Court) that had been that had been counter-manded by this honorable court by calling in army in the Province of Sindh under Article 245 of the Constitution and having recourse to promulgating the Ordinance. The preamble of the Ordinance states that it is being made to enumerate the powers and duties of the Armed Forces acting in aid of civil power "for achievement of the objects of the order made under paragraph (c) of Clause (2) of Article 232 of the Constitution" on 30-10-98. On that date the Government had armed the functions of the Government of the Province of Sindh by imposing governor's rule.

5. The Government has purported to call in the Armed Forces in aid of civil power under Article 245 of the Constitution and has purportedly, for enumerating the power and duties of the forces, promulgated the Ordinance. This Ordinance extends only to the province of Sindh and visualizes that on the direction of the Federal Government the designated authority would convene as many courts as may be necessary to try offenses tribunal under of Ordinance. The tribal offenses are set out in the Schedule to the Ordinance and these include the newly defined offense of "Creating Civil Commotion" as defined under Section 6 of the Ordinance. Section 6 stipulates as follows.

6. Creating Civil Commotion--"Civil commotion" means creation of internal disturbances in violation of law or intended to violate law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicles snatching/lifting, damage to or destruction of State or private property, random firing to create panic, charging bhatha, acts of criminal trespass (illegal qabza), distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended or create unrest or fear or create a threat to the security of law and order or to incite the commission of an offense punishable under Chapter VI of the Pakistan penal Code (Act XIV of 1860).

The violation of Section 6 of the Ordinance is punishable with rigorous imprisonment for a term which may extend to seven years and also fine. Under Section 9(2) an accused person shall not be released on bail. The offense would be tribal by only the trial courts and appeals shall only lie before the courts of appeal which are convened under Pakistan Army Act 1952, Pakistan Air Forces Act, 1953 and Pakistan Navy Ordinance, 1961.

6. The Government has purported to call in the Armed Forces to act in aid of the civil power. As stated earlier the Government has also caused promulgation of the Ordinance. The Government has further set up ten military trial courts and five military courts of appeal in exercise of its authority under the Ordinance.

7. The question raised in the present petition are of great public importance with reference to enforcement of fundamental rights as set out in the constitution and

further submitted that even otherwise the legal consequence of calling in the Armed Forces under Article 245 (3) is that a High Court ceases to exercise any jurisdiction whatsoever under Article 199 in relation to any area in which the Armed Forces are acting in aid of civil power. It can therefore, be-seen that the petitioner has no other effective and adequate remedy than seeking exercise of jurisdiction by this honorable court of its authority under Article 184(3) of the Constitution.

8. The petitioner prays that the acts of the Federation of setting up of Military Courts in the Province of Sindh be declared to be acts without lawful authority, and the impugned Ordinance be declared to be ultravires the Constitution on the following amongst other

GROUNDS:

a) The Constitution visualizes a clear trichotomy of powers in accordance with all democratic civilized systems of law. The Constitution does not countenance the establishment of any courts which are not subordinate to the superior courts i.e. the High Courts and the Supreme Court of Pakistan. By setting up military courts to try all citizens (even if they are not members of the Armed Forces) if they violate the offenses set out in the Schedule, the Government has set up a parallel system of judiciary. The impugned Ordinance says in Section 13 that the provisions of the Ordinance shall over-ride all other laws. It further states in Article 8 that an appeal shall only be to the military court of appeal and further that the decision in appeal shall not be called in question before any court. The honorable superior courts have repeatedly held that there cannot be any parallel system of judiciary and also that the executive has no authority to set up any system of judiciary which is not subject to the superintendence and control of the superior courts as visualized in Article 203 of the Constitution.

b) The setting up of military courts to try civilians is clearly beyond the scope of the Constitution. The matters regarding which any courts or Tribunals other than the ordinary courts can be set up are laid down in Article 212 of the Constitution. This Article as well as the entire Constitution no where visualizes that there can be any military courts to try ordinary citizens. The scheme of the Pakistan Army Act, 1952 itself is that it applies only to persons "subject to the Act" who are defined in Section 2 of the said Act. These persons are only those who are serving under the Army in some capacity. There are similar provisions in the Pakistan Air Force Act, 1953 and the Pakistan Navy Act, 1961.

Any amendment to enlarge to scope of either Pakistan Army Act 1952, Pakistan Air Force Act 1953 and the Pakistan Navy Act 1961 to include within its ambit ordinary citizens would be violative of Article 2-A, 175 and 203 of the Constitution apart from other Articles concerning various Fundamental Rights of the Petitioner.

c) The respondents have acted contrary to the pronouncements of the superior courts regarding exercise of judicial powers by the Armed Forces. By way of illustration reference is made to the case of Darvesh M.Arbey Vs. the Federation of Pakistan etc. (PLD 1977 Lah. 846) where a Full Bench of the Lahore High Court, Lahore clearly laid down that the Federation had no authority under Article 245 of the Constitution to confer judicial powers on the Armed Forces. The court held that the Armed Forces could only act in aid of the civil powers and not act in displacement of the civil powers. It is, therefore, evident that the Armed Forces cannot displace the judiciary.

d) The establishment of the Military Courts under the impugned Ordinance is against the fundamental rights of the petitioner as well as all citizens of Pakistan in Sindh. The setting up of Military Courts is against their right to equal protection of laws. While citizens in other Provinces have access to the ordinary courts of law, the citizens living in Sindh have been placed under the jurisdiction of Military Courts. The entire procedure of Military Courts as visualised in the impugned Ordinance as well as the various acts mentioned in para 2 of the Ordinance, is radically unfair. Section 4 of the Ordinance visualizes that a sentence shall be passed within three days. The appeal against the same shall be preferred also in three days and further the appeal itself shall be decided also in three days. It appears that the draftsman for the law got fixated with number "3" and has in a mechanical manner ruled that the entire process of trial as well appeal should stand concluded in 3 x 3 days. Therefore, this procedural structure on its very face is contrary to the rights of citizens living in Sindh as guaranteed by Article 25 of the Constitution. It is submitted that a person facing trial under the Ordinance would be facing a gross discrimination vis-a-vis persons facing the same kind of charge if not being tried under the Ordinance. Other than the offense under section 6 of the Ordinance, the remaining offenses mentioned in the Schedule are existing offenses. In any ordinary trial the Code of Criminal Procedure, 1898 applies. This procedure visualizes that an accused person would have notice of the allegations against him alongwith copies of the material to be used against him at least 7 days before the framing of the charge. The trial itself has to proceed on the basis of the judgement of the trying officer regarding adequacy of opportunity for the prosecution as well as the defense. In case of conviction an appeal may be filed within 30 days. The appeal itself is to be decided after a hearing. All these features are absent under the Ordinance. It can, therefore, be seen that one set of citizens of Pakistan for having committed the same offense would be tried in a fair manner while those who happened to be living in the Province of Sindh would have to face the "rush to judgements" conceived under the Ordinance. Even regarding appeal it is submitted that in the procedure prescribed for an appeal under the Act mentioned in Section 2 of the Ordinance the armed forces authorities are not supposed to hold any hearing in the appeal but are only supposed to confirm or annual the decision of the trial court.

e) The impugned Ordinance, and establishment of Military Courts thereunder are in conflict with the fundamental norms of Constitution as set up in Article 4 of the Constitution. Article 4 of the Constitution lays down that no person shall be deprived of life, liberty and property contrary to the requirements of due process of law both substantive and procedural. The entire procedure for trial of criminal offenses prescribed in the impugned Ordinance does not even remotely satisfy the requirements of due process of law. The very procedure of the Ordinance and the entire scheme of the proposed decision making process indicates that the law makers had least concern with the spirit of Articles 4,9,10, 14 & 25 of the Constitution. They clearly appear to be treating the process of criminal trial as some kind of necessary evil and the requirement of which may be satisfied in mere form. The basic spirit of a fair criminal trial is absolutely absent. The procedure visualized in the Ordinance is against the basic dictates of a reasonable opportunity for a fair hearing. It does not visualize adequate notice of the case, adequate opportunity to prepare for defense or adequate opportunity to prepare an appeal and argue the same.

f) The impugned Ordinance and the Act of setting up of Military Courts are contrary to the requirements of Article 9 as well as Article 10 of the Constitution. It is submitted that under Article 10 as well as the under Section 349 of the Code of Criminal Procedure a citizen has the right to consult and be defended by a legal practitioner. No such right is visualized for courts martial under the laws set out in Section 2 of the impugned Ordinance.

g) The impugned Ordinance is highly discriminatory in its operation. As already submitted earlier it denies the citizens of Pakistan in Sindh of equality before law. It has under Section 6 created the offense of "Civil Commotion" and prescribed punishments for it which are either non-existent as far as other Provinces are concerned or are considerably less harsh. Section 6 read with Section 7 prescribes seven years rigorous imprisonment even for labor related action such as "go-slows" and "lock outs". It visualizes the same punishment for even making graffiti or wall-chalking intended to create unrest or fear. The entire offense is itself extremely vague. The Government has created an entirely different penal code for the Province of Sindh.

h) The impugned Ordinance purports to have been made under Paragraph (c) of Clause 2 of Article 232 of the Constitution for achievement of the objects of the order made thereunder on 30-10-98. It is submitted that the proviso to the said paragraph itself lays down that the Federal Government cannot suspend the operation of any provision of the Constitution relating to High Courts. The establishment of Military Courts in so-called furtherance of Article 245 has, when read with the said Article, the effect of totally ousting the jurisdiction of the High Courts under Article 199 of the Constitution.

i) The impugned Ordinance purportedly made in furtherance of the objects of Article 232 completely ignores the provisions of Article 233 of the Constitution. Article 233 only visualizes that if otherwise justified, the Federation may make law in derogation of Articles 15, 16, 17, 18, 19, & 24. Nowhere does it visualize that the scope of Article 4, 9, 10, and 25 can be curtailed or diluted. This is precisely what has been done by virtue of the impugned Ordinance.

j) That the impugned Ordinance and setting up of Military Courts is repugnant to the injunctions of Quran and Sunnah and is also inconsistent with the concept of justice propounded by the Quran and Sunnah.

k) The act of the Federation of promulgating the Ordinance setting up of military courts and calling in of the Armed Forces in the Province of Sindh when examined together are against the spirit of Federalism. The impugned Ordinance extends to the Province of Sindh only. It does not touch persons in other provinces. The Ordinance amounts to a gross injury perpetrated on the people of the Province of Sindh. The Government, in its heedless quest for concentrating all powers in its own hands has gone to the extent of depriving the people of Sindh of full exercise of their rights, liberties and privileges under the Constitution. 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 federation 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.

l) Then impugned Acts amount to sabotaging the operations of a constitutional democratic system. The Federation by deciding to rule through the executive arm of the Army is sending out a clear signal that the executive is incapable of exercising its fiat under the ordinary laws. There are numerous examples in the history of Pakistan that when the Armed Forces are forced to assume authority over any area in Pakistan the army has been forced to assume entire powers of role to the exclusion of a dependent and effete administration. The reliance on army of Sikandar Mirza, Ayub Khan and Z. A. Bhutto at the fag end of their arrogant regimes are examples which should not easily be ignored.

m) The impugned acts amount to a statement of no confidence by the Government against the judiciary of the Province of Sindh. Such thoughtless acts have only the result of eroding judicial power. It is submitted that the ordinary courts are infinitely more competent than any other specially created courts to dispense justice and uphold the rule of law, provided crimes are investigated professionally without any discrimination and cases are prosecuted in a professional manner and above all, laws are not bent for the political expediency of those who govern the people. It is therefore, evident that the impugned acts are a serious encroachment of the judicial power.

n) The impugned acts are not only against the independence of the judiciary, supremacy of the judiciary regarding exercise of judicial powers, fundamental rights of citizens but are also against fundamental concepts of human-rights. It is submitted that all charters of human rights always have as one of their fundamental articles that all citizens should have access to the ordinary courts and shall be treated equally under the law. Article 7 of the Universal Declaration of Human Rights adopted by the United Nations declares:

"All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of the Declaration and against any incitement to such discrimination."

o) The impugned acts are mollified. Governor’s rule has been imposed in the Province of Sindh, the impugned legislation has been enacted and Military Courts have been set up only to avoid the possibility of a government being elected by the Sindh Assembly that did not include members belonging to the ruling party in the Center. The exercise of so-called powers under Article 245 of the Constitution and paragraph (c) of Clause 2 of Article 232 of the Constitution and promulgation of the Ordinance are acts of colorable exercise of power and have no nexus with the actual spirit of the said constitutional provisions.

p) The impugned Ordinance is a gross abuse of the Ordinance making power. There was nothing to prevent the government from offering the impugned legislation to the Parliament for its approval. The Ordinance has been promulgated with full knowledge that it could not pass muster if placed before the Parliament. The Ordinance has, therefore, clearly been enacted malafide.

In view of the above it is most respectfully prayed that this honorable court may be pleased.

a) To declare the acts of the respondent of setting up Military Courts in the Province of Sindh to be acts without lawful authority and to be of no legal effect.

b) To declare Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance 1998, being Ordinance XII of 1998 to be ultravires of the Constitution and therefore void.

c) To restrain the Federation form acting under the impugned Ordinance.

Any other relief that this honorable court deems fit and proper in the circumstances of the case may also kindly be granted.

It is further prayed that pending the decision of this petition, the operation of the impugned Ordinance be suspended.

Settled by

Mohammed Akram Sheikh
Senior Advocate

Filed by

Mohammed Ahmed Zaidi
Advocate-on-Record