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ISLAMABAD: The Lahore Bar Association (LBA) has approached the Supreme Court with a petition requesting the apex court to review its majority verdict of upholding the 21st Amendment under which military courts are established.

The LBA, one of the initial challengers of the 21st Amendment, through its president Chaudhry Ishtiaq Ahmad Khan again pleaded before the apex court to accept its review petition by declaring the 21st Amendment and the Pakistan Army (Amendment) Act, 2015, as invalid and repugnant to the basic/salient features of the Constitution, particularly the independence of judiciary, separation of powers and fundamental rights.

Take a look: LHC bar to challenge SC verdict on military courts

Senior counsel Hamid Khan drafted the review petition which says that by validating military courts, the Supreme Court, it appears, has impliedly admitted and acknowledged that the judicial system under the constitution has failed to deliver in matters of fighting against terrorism.

“Such an implied acknowledgment could be disastrous for the judiciary as an independent organ of the State,” the petition said, adding that the independence of the judiciary has to be protected and defended by the Supreme Court at all costs to avoid any encroachment on the judicial powers by other organs of the state.

In any case the role of the judiciary to dispense justice under the Constitution cannot be outsourced to a branch of the executive organ of the state, i.e. the military.

The petition has raised a number of questions, like: when the common judgment of eight judges had held democracy, parliamentary form of government and independence of judiciary as basic salient features of the constitution, then how the same court can hold the establishment of military courts not against the salient features of the constitution.

The majority judgment of the Supreme Court, the review petition argues, suffers from contradiction since on the one hand military courts have been held to be valid while on the other their orders have been made subject to judicial review on the criteria of coram non judice, malafide and without jurisdiction.

The Supreme Court has failed to appreciate the true import of the rationale in the 1999 Sheikh Liaquat Hussain case, the review petition emphasises and says the 1999 verdict categorically held that military courts were outside the pale of Constitution. When something is unconstitutional, then how can it be deemed as constitutional only by making a formal amendment to the constitution, the petition says.

“What is alien to the constitution cannot be made kosher by its mere inclusion through constitutional amendment,” the petition contends.

It is the prime function of the executive to curb terrorism in the country, the petition says, adding that it is for the executive organ of the state to apprehend terrorists, investigate their activities and collect evidence and finally prosecute them before the courts of competent jurisdiction like anti-terrorism courts (ATC).

The success of fight against terrorism depends on the success/performance of these functions by the executive and not by the courts holding the trial. If the executive fails to apprehend, investigate and prosecute terrorists how can courts hearing such cases be blamed for the failure, the petition argues.

Hence, the entire emphasis of introducing military courts to curb terrorism has been misdirected and misconceived, the petition says, adding that in any case the judiciary cannot be saddled with the responsibility for the future of the executive organ of the state to apprehend, investigate and prosecute terrorists.

The review petition also emphasised that it was the duty of the state and the government to protect judges of ATC, prosecutors conducting the terrorism trial and witnesses deposing before ATC. If the government has failed to provide such protection then the judiciary cannot be blamed for the escalation of terrorist activities and incidents.

The petition also bemoans that under the 21st Amendment the right of fair trial and due process has virtually been dispensed with.

The petition pleads that fundamental rights of the citizens of Pakistan in respect of access to justice has been curtailed by the establishment of military courts under the 21st Amendment.

Published in Dawn, August 29th, 2015

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