ISLAMABAD: After a succinct hearing on Wednesday, the Supreme Court acknowledged that the Lahore High Court Bar Association (LHCBA) had highlighted questions of immense public importance in its challenge to the 21st Amendment and asked the respondents to reply to the contentions raised in the petition.

“Since the petition raised questions of immense public importance, let the notices be issued to Attorney General Salman Aslam Butt, advocates general of the four provinces, including that of the federal capital territory,” Chief Justice Nasirul Mulk said as he dictated an order after hearing arguments from senior counsel Hamid Khan, who was representing the LHCBA.

The LHCBA’s petition assails the changes in the Constitution made through the 21st Amendment, as well as changes in the Pakistan Army Act, 1952, that allow for the establishment of special courts headed by military officers to try hardcore terrorists soon after the heinous Dec 16, 2014, attack on the Army Public School in Peshawar by Taliban which left 149 schoolchildren and teachers dead.

The Pakistan Bar Council decided in its meeting on Tuesday that it would also file a petition challenging the amendment.

The chief justice, who was heading a three-judge Supreme Court bench along with Justice Gulzar Ahmed and Justice Mushir Alam, asked the respondents to submit their rejoinders within a fortnight, saying that the case would be taken up again on Feb 12.

The federal law ministry and the law departments of the four provincial governments are the respondents in this matter.

Towards the end of proceedings, LHCBA President Shafqat Mehmood Chauhan, who was present in Courtroom No 1, said that the military courts might start functioning soon, but the bench maintained that it wanted to give respondents time to file their replies.

During Wednesday’s proceedings, Justice Alam sought Hamid Khan’s opinion on Article 239(5) of the Constitution, which bars amendments to the constitution from being challenged in any court on any grounds.

But before the counsel could answer, the chief justice decided to end the day’s proceedings by issuing notices to the respondents.

Justice Gulzar Ahmed also observed during the proceedings that the political party that the counsel represented had supported the amendment.

Mr Khan, however, explained that he had openly opposed the idea during the first All-Parties Conference (APC), necessitating the convention of the second conference by Prime Minister Nawaz Sharif on Jan 2, where the amendments were agreed upon.

All 34 members of the PTI, of which the counsel is vice president, abstained from voting on the amendment in parliament, which ended up being passed unanimously on Jan 6 from both the National Assembly and the Senate.

He claimed that the amendment reduced the concept of separation of judiciary from the executive, since it not only affected Article 175(3), but also amended the first schedule of the Constitution for the first time in 39 years. The first such revision was made through the Fifth Amendment in 1976, when land reform regulations were passed and certain states were made part of Pakistan.

Moreover, he argued, the amendment affects Article 2A, which is a substantial part of the Constitution where the emphasis is on securing the independence of the judiciary. He maintained that the amendment abridged the enforcement of the fundamental rights as ensured under Article 8 of the Constitution, and therefore violates the basic features of the Constitution.

Published in Dawn, January 29th, 2015

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