ISLAMABAD: The Sup­reme Court decided on Thurs­day to take up petitions challenging the establishment of military courts under the 21st Amendment and hold hearing from Jan 28.

A three-member bench headed by Chief Justice Nasirul Mulk and comprising Justice Gulzar Ahmed and Justice Mushir Alam will take up a set of petitions, but the lead petition will be the one moved by the Lahore High Court Bar Association (LHCBA) through its president Shafqat Mehmood Chauhan.

The rest of the challenges made by Barrister Zafar­ullah Khan of the Watan Party, Advocate Maulvi Iqbal Haider, Pakistan Justice Party Chairman Munsif Malik, Shahid Orakzai and the Communist Party of Pakistan (CPP), will be taken up after the LHCBA petition.

The LHCBA filed the challenge after a resolution adopted on Jan 14, but the premier bodies of the legal fraternity, namely the Pakistan Bar Council and the Supreme Court Bar Association, are meeting on Jan 31 to decide whether or not to follow suit in view of the general acceptance of military courts among ordinary citizens, who are fed up with the wave of terrorism sweeping the country.

Lead petition challenging the setting up of military courts has been filed by the Lahore High Court Bar Association

In its petition, LHCBA prayed before the court to declare the 21st Amendment as being against the basic structure and features of the Constitution since the amendment abrogated the fundamental rights of the people of Pakistan guaranteed in chapter I of Part II of the Constitution.

The LHCBA petition argues that the very concept of citizens being tried by special military courts is simply shocking, absurd and an invasion of the judiciary’s remit and cannot be allowed to sustain.

The association, the petition explains, is fully cognisant of the principles relating to the authority of the parliament to amend the constitution, yet, it is an undeniable fact that parliament’s power is not unlimited and it cannot pass an amendment which abrogates fundamental rights.

Any court or tribunal not subject to administrative control or judicial review of the judiciary cannot be grafted in the judicial framework of the constitution, the petition emphasises. It also recalled that it was a settled law under constitutional jurisprudence that the independence of judiciary constitutes a basic and salient feature of the Constitution, as has been held by the Supreme Court in the Zafar Ali Shah case of 2000. Therefore, even parliament cannot undo the salient features, rendering a pillar or organ of the state weak and dependent.

The petition says that the judiciary was a guardian and guarantor of the fundamental rights of the people, particularly in relation to equality before the law, equality of status, equality of opportunity, freedom of expression, belief, faith, worship and association and rendering of social, economic and political justice. These rights would be of no consequence unless there was an independent judiciary available to guarantee and enforce them.

It is also the basic principle of the constitution that the judiciary will be separated from the executive, the petition says, adding that it has been established over the years that an independent judiciary was an essential element of a democratic constitution. The democracy and independence of judiciary go together. Many countries such as the US, UK and India have become established democracies because of their independent judiciaries. The petition also contends that a weak and pliable judiciary succumbs to the pressures of dictators, military or civilian.

Published in Dawn, January 23rd, 2015

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