ISLAMABAD: Shortly after openly opposing the reinstatement of military courts under the 23rd Ame­ndment, Supreme Court Bar Association (SCBA) president Rasheed A. Razvi has formally challenged the amendment in the Supreme Court.

The petition, filed on Friday, says: “Since the amendment has effectively abrogated and taken away fundamental rights of the people of Pakistan guaranteed by Chapter I of Part II of the Constitution, therefore, it may kindly be dec­la­red that the same (amendment) cannot remain the part of the text of the Constitution.”

Speaking to reporters after filing the petition, Mr Razvi said: “We have called [an] SCBA meeting on Saturday and may request the top court through an application in a few days for early hearing of the case.”

At a full court reference held in honour of former Justice Amir Hani Muslim last month, on reaching superannuation, the SCBA president had stated: “Military justice is justice denied and military courts have never been nor will be an answer to defeat terrorism.”

Says it abrogates fundamental rights of citizens

Military courts had been constituted with a two-year sunset clause under the 21st Amendment, which was challenged in the Supreme Court. On Aug 5, 2015, by a majority of 11 to six, the Supreme Court had appro­ved the setting up of nine special courts manned by military officers to try militants.

Citing the verdict of 2015, which had held that the powers granted to military courts were a temporary measure, the petition arg­ued that by extending the period of the courts through the 23rd Amendment, the temporary measure had been rendered a permanent one.

Thus the rationale of the judgement in the 21st Ame­ndment had been negated, the petition argues, adding that the 23rd Amendment had given life to a failed experiment, since an exception, if repeated twice, would assume the character of a rule.

The petition recalls the Zafar Ali Shah case of 2000, which had identified salient features of the Constitution, namely the independence of the judiciary, federalism, parliamentary form of government with Islamic provisions, and added that the salient features were beyond the pale and power of parliament to amend.

“Thus any amendment to the Constitution that reflects adversely on the independence of judiciary is beyond the competence of the Parliament to enact,” the petition highlights. The independence of the judiciary and enforcement of fundamental rights were of such paramount importance and so vital to the survival of democratic constitutional system and dispensation that they cannot be left at the mercy of temporarily changing and shifting exigencies and expediencies, the petition argues.

The basic elements of a constitutional contract between the people and the state, recognised by the founding fathers of the Constitution, should always be saved and safeguarded. The judiciary as the ultimate arbiter and interpreter of the Constitution has a duty and obligation to safeguard such vital foundations of the constitution from majorities in parliament, the petition says.

The Constitution had envisaged, without any shadow of doubt, trichotomy of power with all three organs of the state — the legislature, the executive and the judiciary — with clearly defined areas of jurisdiction and functions.

Therefore, any attempt which destroys the basic structure of the Constitution is beyond the powers even of the legislature and therefore the 23rd Amendment was liable to be struck down on the touchstone of theory of basic structure and features of the Constitution.

It adds, moreover, the idea of civilians being tried by special military courts is simply shocking and absurd and is actually an invasion of the authority of the judiciary as a whole and cannot be allowed to sustain.

The petition says that the SCBA was fully cognisant of the principles settled in relation to the authority of parliament to amend the Constitution, yet, it was an undeniable fact and has repeatedly been held by the apex court that parliament’s power to amend the Cons­titution was neither unlimited nor unbridled and, therefore, it could not pass an amendment to the Constitution which abrogated the fundamental rights of its citizens.

The federal government, through secretaries of law and defence, has been named the respondent in the petition.

Published in Dawn, April 15th, 2017