ISLAMABAD: Three days before the Supreme Court takes up a challenge to the 21st Amendment, two premier bodies of lawyers – the Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA) – filed on Monday separate petitions against military courts set up under the amendment.

A three-judge bench headed by Chief Justice Nasir-ul-Mulk will resume on Thursday hearing on a petition filed by the Lahore High Court Bar Association and take up replies of federal and provincial governments elucidating their stand on the petition.

Also read: Trials in military courts begin next week

Through separate but almost identical petitions, the PBC and the SCBA have requested the court to interpret the 21st Amendment and hold that the jurisdiction of military courts will not be extended to civilians because the amendment is inconsistent with Article 175(1), 203 which empowers high courts to superintend subordinate courts and Article 4, as well as fundamental rights, principle of separation of powers and independence of judiciary.

They have also requested the court to declare the Pakistan Army (Amendment) Act (PAA), 2015 as ultra vires of the Constitution because it offends Article 203 and violates a number of fundamental rights guarantees extended to individuals and citizens.

SC to take up LHCBA petition against 21st Amendment on 12th

The petitions said the court should revisit the May 12, 2000 Zafar Ali Shah case in which a 12-judge bench headed by then chief justice Irshad Hasan Khan had held that on Oct 12, 1999 a situation had arisen for which the Constitution provided no solution and the intervention of the armed forces through an extra-constitutional measure had become inevitable and, therefore, it was being validated on the basis of the doctrine of state necessity.

The PBC petition was filed by senior counsel Abrar Hassan and Abdul Latif Afridi on behalf its vice chairman Azam Nazir Tarar and that of the SCBA by senior counsel Asma Jehangir and Kamran Murtaza on behalf of its president Fazal-i-Haq Abbasi.

According to the petitions, the powers granted to the federal government to pick and choose the transfer of any proceedings against individuals accused of committing offence falling within the PAA would violate the principles of Article 25 which called for equality of citizens.

It has also created legal uncertainty regarding the judicial forum which can be used selectively because the accused framed under the same offences can be tried under the Protection of Pakistan Act (PPA) 2014, the Pakistan Penal Code in anti-terrorism courts and in Fata/Pata under the Action (in Aid of Civil Power) Regulation 2011.

The amendment, the petitions contended, had seriously impaired the system of administration of justice because the PPA was also under challenge before the apex court. Citing media reports, they said the amendment had been passed by parliament under pressure from the military high command, especially when the parliamentarians were on record having denounced extending jurisdiction of the PAA to civilians who might not be involved with crimes against the military or its security set-up.

Besides, a public tweet by the ISPR urging, indirectly, the parliamentarians not to ‘waste’ time is also a form of political intimidation and as such under the influence of the executive parliament passed the amendment.

This intrusion of the executive into the affairs of the legislature and the judiciary, the petitions said, was ominous, and a clear pronouncement by the Supreme Court was critical on the usurpation of political space by the armed forces.

The petitions have raised a number of questions, including whether the 21st Amendment can restrict the powers of high courts; whether trials under any system of law should not be subject to observing the principles of due process and fair trial and whether an accused arrested under the law is not entitled to the fundamental rights guaranteed under the Constitution during the period of his arrest.

Published in Dawn, February 10th, 2015

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