Chief Justice said Military courts’ ways blocked forever.

ISLAMABAD: Chief Justice of Pakistan Iftikhar Muhammad Chaudhry on Wednesday remarked that through judicial orders, the Supreme Court had blocked the way for introduction of military courts forever and only the constitutional system would function in the country.He made the remarks heading an eleven-member larger bench hearing a reference sent to it under Article 186 by the President for revisiting of Zulfikar Ali Bhutto’s murder case.He told Dr Babar Awan, counsel for the referring authority during the course of proceedings: “It is a loud and clear message to all, nobody should be in any illusion furthermore, so long, we are sitting and functioning under the Constitution, Inshallah, nothing will happen to the system. Those days are over when people feared that something would happen overnight.”
He said that the court had annulled the sentence of military courts in Liaquat Hussain’s case in the past.
Making his submission on maintainability of the reference, Dr Babar Awan contended that Article-186 had the wider scope for the apex court’s jurisdiction.
The question of desirability vested with the President under Article 186 of the Constitution, he added.
He said there were two kinds of legislation - one framed by the Parliament and the second was called precedent law.
He said it were not the judges who had to decide the issue of bias, rather the litigants had to decide how they were getting justice.
“Do judges are allowed to express indignation during proceedings, which happened during trial of late Bhutto?” he questioned.
The CJ told him that ‘a President’ being head of the country, ought to function for all its subjects and hence, all citizens were equal before him,including those of elite class and those living in slums.
He questioned if the court re-opened a close and decided case, then people from all walks of life would start approaching the courts with requests to revisit their closed cases.
He asked the counsel to guide the bench through a mechanism or judicial precedent through which they could give their opinion over ZAB’s case without opening floodgates for future litigations.
He observed that during their meetings in Karachi, Advocate general Sindh had told him that there were about 300 mercy applications pending with the President so what would become of them.
Dr Babar said that the question of law was involved in the case and it was only the domain of court to interpret it.
“The Supreme Court is mandated by the Constitution and it is its prerogative to decide whether a controversial verdict should remain on the PLD (Pakistan Legal Decisions) pages,” he added.
Justice Jawwad S. Khawaja said that the President had unfettered powers under Article 186, but they as judges were bound over the issue.
Advocate General Sindh Fatah Malik in his arguments said that the founder of 1973 Constitution was hanged through an unfair trial and the apex court could undo the injustice.
To a bench’s query, he replied that the court had expanded its jurisdiction in Nawaz Sharif’s case and granted relief even after passage of many years and in this case it should also exercise its powers.
The CJ told him that the particular case was not related to Article 186 of the Constitution.
He said that they should be assisted on law points and constitutional arguments rather than through emotional way because their decision over the issue would be going to set a precedent in future.
Justice Sarmad Jalal Osmani remarked that law was equal for everybody.Fatah said that the President was asking for the court’s opinion and holding of trial was the right of every individual which was also an equal question of law.
He said the judges, who wrote the verdict, also regretted that the trial was not fair.
Justice Mian Saqib Nisar reminded him that according to him the Parliament had the right to undo such case, then why should not it exercising its powers.The Advocate General replied that the Parliament was not a substitute for Article 186.
He said that this court had granted relief even to dictators and in this case, it should also exercise its jurisdiction.
Abdul Hafeez Pirzada and Fakharuddin G. Ebrahim, who were appearing as friends of the court to assist it over the issue, maintained that the court had the jurisdiction to hear the reference. They said that the reference was maintainable.
Pirzada said that even in European history, a century old case was reopened.He said the courts, which handed down death sentence to ZAB at that time,were under the martial law regime which was evident from the verdict.
Citing Sindh High Court Bar Association’s verdict, he said the court had annulled many things and exercised its wider jurisdiction.
He prayed to the court to keep the issue alive and did not shut doors on mere maintainability issue.He contended that the Constitution permitted the court to hold review of a case even if it was final.
To a bench’s query, he said the cases of common litigants would come to this court in case if the President, who was empowered under Article 186, referred them.
Fakkharuddin G. Ebrahim stated that judges, who awarded death sentence,were under the influence of military regime.
Further hearing was adjourned till Thursday.

link: http://app.com.pk/en_/index.php?option=com_content&task=view&id=173489&Itemid=2