In Pakistan, the Supreme Court’s historic role has been one of subservience to military dictators. Chief Justice Iftikhar broke with the past and changed that. The nexus between the Generals, corrupt rulers and the superior judiciary has snapped. An era of deference by the Supreme Court to the Executive has given way to judicial independence. Isn’t it ironic that today the people of Pakistan, especially the poor, the disadvantaged and the voiceless, expect justice not from the Parliament, not from the Presidency, not from the Prime Minister but from an unelected and unaccountable Supreme Court ? In every period of political turmoil, men must, therefore, have confidence that superior judiciary, the guardian of the constitution, will be fiercely independent and will resist all attempts to subvert the Constitution.

Today, there is no civil commotion in the country preventing the judges from going to Courts. Civil courts are functioning normally. And yet, in a major departure from established law, it is proposed to amend the Constitution to provide cover for the establishment of Military Courts. Anti-terrorist courts, now manned exclusively by Judges, will, henceforth, be manned by army officers to the exclusion of Judges. It will alter the basic structure of the judiciary and undermine the confidence of the people in the independence and objectivity of Courts. It will also make mockery of the concepts of Rule of Law and Separation of Powers. Judiciary will become subservient to the Executive and the Rule of Law will be replaced by Rule of Man. When that happens, no enumeration of Fundamental Rights in the Constitution will be of any avail to the citizen because the Courts of Justice would then become Government Courts.

Nothing better illustrates the determination with which judges in England have always maintained the Rule of Regular Law, even at periods of revolutionary violence, than Wolf Tone’s case. In 1798, Wolf Tone, an Irish rebel, took part in a French invasion of Ireland. The man-of-war in which he sailed was captured, and Wolf Tone was brought to trial before a court martial in Dublin. He was thereupon sentenced to be hanged. He held, however, no commission from the French Republic. On the morning when the execution was about to take place, an application was made to the Irish King’s Bench for a writ of Habeas Corpus. The ground taken was that Wolf Tone, not being a military person, was not subject to punishment by a court - martial, in effect, that the officers who tried him, were attempting illegally to enforce martial law. When it is remembered that Wolf Tone’s substantial guilt was established, that the court was made up of judges who detested the rebels, that in 1798 Ireland was in the midst of a revolutionary crisis, it will be admitted that no more splendid assertion of the supremacy of law can be found than the protection of Wolf Tone by the Irish Bench.

The induction of military personnel in Courts established by law is violative of the spirit and letter of our Constitution. Clause (1) of Article 4 of the Constitution provides that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan. Clause (2) thereof lays down that in particular no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law. Since military courts or quasi - military courts in which military personnel participate, do not fit in within the framework of the Constitution.

In the case of Mehram Ali and others, a full bench of the Supreme Court enunciated the following legal propositions:

That Article 175, 202, and 203 of the Constitution provide a framework of the judiciary i.e. the Supreme Court , a High Court of each province and such other courts as may be established by law.

That the words “such other courts as may be established by law” employed in clause (1) of Article 175 of the Constitution are relatable to subordinate courts referred to in Article 203 thereof.

That our Constitution recognized only such specific Tribunals to share judicial powers with the above courts which have been specifically provided by the Constitution itself. It must follow that any court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the courts referred to in Article 175 and 203 of the Constitution.

That the hallmark of our Constitution is that it envisages the separation of the judiciary from the Executive in order to ensure the independence of the judiciary.

That the courts/ tribunals which are manned and run by Executive authorities can hardly meet the mandatory requirements of the Constitution.

When the matter came up before the Supreme Court in Liaquat Hussain’s case, it was contended that it was in fact terrorists who violated Article 9 by depriving innocent persons of their lives and not the federal government which promulgated the Pakistan’s Armed Forces Ordinance 1998 with the object to punish terrorists. There in no doubt that when a terrorist takes the life of an innocent person, he is violating Article 9 of the Constitution, but if the terrorist, as retaliation, is deprived of his life by a mechanism other than through due process of law within the framework of the Constitution, it will also be violative of Article 9.

It was further contended that the establishment of military court or courts in which military personnel participate, is a temporary phenomenon necessitated by the grave situation created by the terrorists and, therefore, establishment of these courts should not be treated as a displacement or substitution of normal judicial process which will stand revived as soon as the present situation is brought under control. On these premises, it was further contended that the setting up of military courts is to be viewed in this perspective and treated as a step to support or revamp the judicial system which had lost its effectiveness in the prevailing circumstances.

No circumstance exists in the country which indicates the breaking down of the judicial organ, necessitating the establishment of military courts. It is imperative for the preservation of the State that the existing judicial system be strengthened and the principle of trichotomy of power adhered to by following, in letter and spirit, constitutional provisions and not by making deviations therefrom on any ground whatsoever.

Today, we are engaged in a great battle for the Rule of Law and the independence of the judiciary. We have won the first round but the fight is not over. A responsibility rests on the shoulders of Chief Justice Nasir-ul-Mulk. The survival of the Federation as a democratic, progressive state ruled by law now depends on his Court.

The writer is a retired civil servant and senior political analyst.