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

On a mobile phone? Get the Dawn Mobile App: Apple Store | Google Play

Opinion

Editorial

United stance
Updated 13 Nov, 2024

United stance

It would've been better if the OIC-Arab League summit had announced practical measures to punish Israel.
Unscheduled visit
13 Nov, 2024

Unscheduled visit

AN IMF mission is in Islamabad for unusual, early talks with the Pakistani authorities as the lender seems worried...
Bara’s businesswomen
13 Nov, 2024

Bara’s businesswomen

BARA tehsil, a region typically known for its security challenges and socioeconomic problems, can now boast the...
System failure
Updated 12 Nov, 2024

System failure

Relevant institutions often treat right to internet connectivity with the same disdain as they do civil and political rights.
Narrowing the gap
12 Nov, 2024

Narrowing the gap

PERHAPS a pat on the back is in order for the ECP. Together with Nadra, it has made visible efforts to reduce...
Back on their feet
12 Nov, 2024

Back on their feet

A STIRRING comeback in the series has ended Pakistan’s 22-year wait for victory against world champions Australia....