SCBA comes out against military courts

ISLAMABAD: The Supreme Court Bar Association (SCBA) on Thursday joined the muted chorus of voices opposing the government’s reactivation of military courts, when its president Rasheed A. Rizvi noted: “Military justice is justice denied and military courts have never been, nor will be, the answer to terrorism.”

Speaking at the full court reference held in honour of the superannuation of Justice Amir Hani Muslim, Mr Rizvi recalled Cicero’s maxim, summum ius summa iniuria, which literally means “extreme law, extreme injustice”.

The phrase refers to instances when an incomplete application of the law — without understanding the law’s purposes or considering the overall circumstances — becomes a means of supreme injustice.

“My lords, it is with regret that we note that the two years of military courts have not proved enough,” deplored the SCBA chief, who represents the country’s most prestigious body of lawyers who practise in the Supreme Court.

He bitterly recalled that military courts were being given a new lease of life on the pretext of countering terrorism as per the much-maligned doctrine of state necessity.

Mr Rizvi regretted that the government had deviated from the well-established principle of due process, which was the basis of Article 4 of the Constitution and categorically incorporated as Article 10A on the right to a fair trial.

The establishment of a parallel judiciary would never be approved by any court in a civilised country, Mr Rizvi said, recalling the 1993 Azizullah Memon case in the Supreme Court, where it was held that handing over the adjudication of rights and trial of offences to the executive was a means of hindering access to justice.

“It is the collective view of the bar that the judiciary of Pakistan has never, in the past nor the present, failed to perform in accordance with the law and the Constitution,” Mr Rizvi emphasised.

“It is a failure of civilian and military governments that the institution of judiciary was always neglected and ignored.”

Mr Rizvi also had a solution for effectively countering terrorism; enhancing the strength of the judiciary and paralegal staff, improving the working of intelligence and investigative agencies and promoting efficiency in the prosecution department.

Only through a vibrant and credible civilian justice system could terrorists be brought to book, he emphasised.

Economic development and peace were not possible in the country without the rule of law, he stressed. “Our past experience has proved that summary trials without opportunities to the defence cannot effectively counter terrorism,” he said.

Meanwhile, in his remarks, Chief Justice of Pakistan Mian Saqib Nisar regretted that the weakening of state institutions through discrimination and favouritism had resulted in the absence of good governance and the violation of fundamental rights of their employees.

The chief justice appreciated one of Justice Muslim’s judgements, where he discussed the requirements of Article 184(3) of the Constitution, dealing with the court’s jurisdiction in the enforcement of citizen’s fundamental rights.

“Once the Supreme Court exercises this discretion and decides that there is indeed a question of public importance that pertains to the enforcement of any of the fundamental rights contained in the Constitution, then that decision of this court is final and no party including the government can object,” the chief justice observed.

The chief justice said that the rule of law was not limited to the protection of an individual’s rights and the resolution of disputes in accordance with law, but also included an independent and effective judiciary that safeguarded against the abuse of power, and a law-abiding government.

“An egalitarian society cannot be achieved without establishing the rule of law within government institutions, which can be achieved through the elimination of corruption, nepotism and discrimination within institutions and strict adherence to the law and Constitution,” the chief justice said.

Source: Dawn