ISLAMABAD: Following the example of the Supreme Court Bar Asso­ciation (SCBA), the Lahore High Court Bar Association (LHCBA) on Monday challenged before the Supreme Court the establishment of military courts for the second time through the 23rd constitution amendment.

The petition was filed by LHCBA president Chaudhry Zulfiqar Ali through senior counsel Hamid Khan with a plea to declare the amendment illegal and that it cannot be part of the text of the Constitution.

On April 14, SCBA President Rasheed A. Rizvi was the first to challenge the amendment whereas the Pakistan Bar Council in its meeting of April 16 also decided to move the Supreme Court to question the validity of the 23rd amendment.

The language of the LHCBA petition was almost similar to the petition of the SCBA in which it was pleaded that the 23rd constitution amendment had effectively abrogated and taken away fundamental rights of the people of Pakistan guaranteed by Chapter I of Part II of the Constitution.

The independence of the judiciary and enforcement of the fundamental rights were of such paramount importance and so vital to the survival of a democratic constitutional system and dispensation that they could not be left at the mercy of temporarily changing and shifting exigencies and expediencies, the LHCBA argued.

It said the very rationale of the 2015 judgement in the 21st amendment had been negated, adding the 23rd amendment had given a [new lease of] life to a failed experiment since an exception if repeated twice would assume the character of a rule.

Recalling that the 2015 verdict had held that the military courts under the 21st amendment was a temporary measure, the petition argued that by extending the period of the courts through the 23rd amendment, this temporary measure had been rendered into a permanent one.

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

The basic elements of the 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 had a duty and obligation to safeguard such vital foundations of the constitution from majorities in parliament, the petition said.

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

Therefore any attempt even by way of a constitutional amendment which destroyed the basic structure of the Constitution was clearly beyond the powers even of the legislature / parliament and therefore the 23rd amendment was liable to be struck down on the touchstone of theory of basic structure and features of the constitution.

Moreover the very concept of civilian citizens being tried by special military courts was simply shocking and absurd and was actually an invasion over the authority of the judiciary as a whole and therefore cannot be allowed to sustain, the petition argued.

Published in Dawn, April 18th, 2017