Supreme Court holds Military Trial Courts unconstitutional

ISLAMABAD, Feb 18 (APP): Supreme Court Wednesday in a unanimous decision held the establishment of military courts as unconstitutional. The court in a short order also declared that the ordinance 12 of 1998 as amended upto date which allows the establishment of military courts and trial of offences provided in the section 6 of the said ordinance, are unconstituional. The court also provided ten guide-lines for the expeditious disposal of cases of terrorism. The court also directed that all the pending cases with the military courts may be transeferred to the existing anti- terroirsts or courts to be esbalished later under the law. The nine-member bench headed by Chief Justice Ajmal Mian, included Justice Saeed-uz-Zaman Siddiqui, Justice Irshad Hasan Khan, Justice Raja Afrasiab Khan, Justice Bashir Jahangiri, Justice Nasir Aslam Zahid, Justice Munawar Ahmed Mirza, Justice Mamoon Qazi and Justice Abdur Rehman Khan.

Urgent Supreme Court decision's text in MTC case

ISLAMABAD, Feb 18 (APP): Following is the text of the decision of the nine-member bench of the Supreme Court announced on Wednesday in the petitions against establishment of military courts.

ORDER: "After hearing the learned counsel for the petitioners, the petitioners in person, the learned Attorney-General for Pakistan and the learned Advocate-General Sindh, for the reasons to be recorded later, we are of the view that Ordinance No. XII of 1998 as amended up-to-date in so far as it allows the establishment of Military Courts for trial of civilians charged with the offences mentioned in section 6 and the Schedule to the above Ordinance are declared unconstitutional, without lawful authority and of no legal effect and that the cases in which sentences have already been awarded but the same have not yet been executed shall stand set aside and the cases stand transferred to the Anti-Terrorist out already in existence or which may hereinafter be created in terms of the guidelines provided hereunder the disposal in accordance with the law. The evidence already recorded in the above cases and the pending cases shall be read as evidence in the cases provided that it shall not affect any of the powers of the Presiding Officer in this regard as is available under the law. The above declaration will not affect the sentences and punishments already awarded and executed and the cases will be treated as past and closed transactions. However, we are not oblivious of the fact that terrorism in Karachi and in other parts of Pakistan has not only taken toll of thousands of innocent lives but has also affected the economy of the entire country and it is a matter of paramount importance that this menace is eliminated effectively in the shortest possible time, for which a solution be found within the framework of the Constitution. Since we are seized of these petitions in exercise of our constitutional jurisdiction under Article 184(3) of the Constitution, we lay down the following guidelines which may contribute towards the achievement of the above objective:-

i) Cases relating to terrorism be entrusted to the Special Courts already established or which may be established under the Anti-Terrorism Act, 1997 (hereinafter referred to as A.T.A. ) or under any law in terms of the judgment of this Court in the case of Mehram Ali and others versus Federation of Pakistan (PLD 1998 SC 1445);

ii) One case be assigned at a time to a Special Court and till judgement is announced in such case, no other case be entrusted to it;

iii) The concerned Special Court should proceed with the case entrusted to it on day-to-day basis and pronounce judgement within a period of 7 days as already provided in A.T.A. or as may be provided in any other law;

iv) Challan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court;

v) An appeal arising out of an order/judgement of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal;

vi) Any lapse on the part of the investigating and prosecuting agencies shall entail immediate disciplinary action according to the law applicable;

vii) The Chief Justice of the High Court concerned shall nominate one or more Judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines:

viii) That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines. The Judges of the Supreme Court to monitor the implementation of the above guidelines. The Judge or Judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court;

ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the A.T.A., the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, advocates and witnesses appearing the case minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.