KARACHI, Feb 14: The Sindh High Court admitted on Thursday, for regular hearing, a constitutional petition in which the induction of serving army officers into the proposed reconstituted anti-terrorism courts has been challenged on the premise that it is a negation of the independence of judiciary, violation of constitutional provisions and the apex court’s judgments.
A division bench, comprising Chief Justice of the SHC, Justice Saiyed Saeed Ashhad, and Justice Zia Pervez, put the Federation, attorney-general and advocate-general Sindh on notice for Tuesday, Feb 19, by holding that the contentions needed consideration.
Abul Inam, as the President of the Sindh High Court Bar Association, has fled the petition.
Abdul Hafeez Lakho, advocate, representing the petitioner, submitted that the main objection was on the amendment to section 14 of the Act.
He argued that representatives of the army in the proposed courts would not belong to the judiciary. They would be appointed by the federal government, and they would never be under the control of the superior judiciary.
It was his contention that the very concept of independence and separation of judiciary was not only jeopardized, it was negated also.
He submitted that the judiciary would not be able to determine the terms of service of the armymen or exercise disciplinary control over them. It would amount to reintroducing administrative control over the subordinate judiciary by retaining the powers of appointments and terms and conditions of service of judges.
Under the present dispensation in the country, he argued, the nomination of a person belonging to the armed forces, enjoying a rank not below the rank of lieutenant-colonel, would clothe him with the authority to have the final say in the matter, or at least it would so appear that he would have the final say in the matter which would not only affect the separation of judiciary but its very independence.
In such a situation decision of a court would not be accepted as unbiased and uninfluenced, and such an approach would destroy the very basic principle that justice should not only be done but it should also appear to have been done.
He submitted that to accommodate the member of an ATC belonging to the armed forces, a provision had been made through section 4 by amending the impugned Ordinance by amendment to Section 15 of the Act permitting the holding of trial even in a cantonment area.
It has been contended that the very trial of an ordinary citizen in a cantonment area will further destroy the faith of the citizen in the judicial dispensation under the new arrangements which clearly appears to be made to give control to the armed forces in associating a member of the armed forces with the judiciary, with the blessings and under the auspices of the High Courts, which will have its own repercussions.
Mr Lakho said to facilitate this third member, it had been proposed that trial might be held in cantonment, though the men in uniform did not like to attend and sit in the civilian courts, when they were called upon.
He said such an arrangement would be a negation of the principle of “access to justice” and the right to fair trial and impartial court.
The powers conferred on the joint investigating team for investigation in terms of the amendment made to section 7 of the amending Ordinance further complicated matters in respect of the independence and separation of judiciary from the executive as the personnel of investigating teams, coming under the control of the armed forces, could also have a say in the matter of investigation. As such, investigation would also have its own influence on the final judgment of the newly-established court in view of the constraints of discipline in the armed forces.
Provisions of section 3 of the Ordinance had directly introduced the powers of the government to appoint an army personnel to perform judicial functions and have the final say in matters brought before the court, he submitted.
It was also his contention that powers conferred on the joint investigating team would further complicate the matter and the investigation carried out by them would not only be partial but also have influence on the final judgments of the ATCs. It would make the proceedings questionable.
Mr Lakho cited from Sharaf Fareedi’s case on the separation of judiciary, and also from the Balochistan Government Vs Azizullah Memon, Shaikh Liaquat Husain and Mehram Ali cases.
Mr Lakho argued that taking advantage of the present political situation the executive had once again attempted to reimpose its authority on the judicial system by promulgating the Anti-terrorism (amendment) Ordinance 2002 whereby the executive had attempted to involve the High Courts in the setting up of new ATCs.
He contended sub-section 2 of the impugned ordinance, which left it to the High Court concerned to specify territorial areas of ATCs, was ultra vires of the constitution inasmuch as it required the High Court to predetermine the necessity of ATCs.
He prayed the court to declare the amendments made to sections of the ATA in violation of the provisions of article 173 (3) of the constitution, void, inoperative and of no legal effect inasmuch as the amendments were contrary to, and inconsistent with, the provisions of article 2 of the constitution.
The petitioner has maintained that ever since the provisions of article 175 (3) of the constitution became fully effective and operative and operation was further guaranteed by the declarations made by the superior courts from time to time with regard to the independence of judiciary, attempts had been made by the executive to make inroads into such independence by moulding some of the statutes.
Mr Lakho also placed the order of the Lahore High Court on record which has already stayed the setting up of ATCs with armymen.
