LAHORE, Feb 12: The Lahore High Court on Tuesday stayed the establishment of new anti-terrorism courts with army officers among their members.

The stay came when the court admitted a constitutional petition challenging the Anti-Terrorism (Amendment) Ordinance, 2002, to regular hearing by a three-member bench from March 11.

The petition was filed on Monday by the Lahore High Court Bar Association in pursuance of a resolution of its general body through 11 members of the Pakistan and Punjab Bar Councils led by Latif Khan Khosa.

Chief Justice Falak Sher, who heard the petition, told lawyers to suspend any agitation planned by them against the impugned ordinance pending the petition’s disposal. A convention of Bar representatives scheduled to be held in Lahore on Friday was accordingly put off by the organizers.

When Deputy Attorney-General Saeeduz Zafar pointed out that the Supreme Court had disfavoured the suspension of a law pending proceedings against it, the CJ observed that he had not suspended the law but had only restrained the federal interior secretary from processing matters under the impugned law subject to notice.

The secretary is responsible for coordination with high courts, the military and provincial governments for constitution of new anti-terrorism courts, which are to consist of three members: each a serving or retired sessions or additional sessions judge or a former high court judge to be nominated by the CJ concerned; a judicial magistrate; and an army officer not below the rank of lieutenant-colonel.

The attorney-general of Pakistan and the advocate-general of Punjab were asked to assists the court on March 11, by which date the respondent federal government is to submit its written statement in reply to the contentions raised by the petition. DAG Saeeduz Zafar and Additional Advocate-General Bilal Khan, who were present on a court call, accepted notices on behalf of the respondent governments.

The CJ constituted a bench comprising himself and Justices Karamat Nazir Bhandari and Chaudhry Ijaz Ahmad to hear the petition with other identical matters. An earlier petition moved by Advocate A.K. Dogar on behalf of the Pakistan Lawyers Forum was also referred by Justice Saqib Nisar to the CJ on Tuesday.

Under the new ordinance, the existing anti-terrorism courts consisting of a single special judge each appointed on the recommendation of the chief justice are to stand abolished on the creation of new three-member courts. Little substantive proceedings are being conducted by the existing courts in view of their impending abolition.

In the course of Tuesday’s proceedings, the CJ came down heavily on the advocate-general’s office. He said the various law officers were said to be nominees of this or that government functionary; they were providing little assistance to the courts to adjudicate matters. The law officers should have been appointed on merit to watch the interest of the state, he said.

The CJ noted in his admission order the petitioner’s contention that proposed army officers’ induction into the judicial organ of the state was a transgression on the independence of the judiciary and its separation from executive. It also militates against the trichotomy of state power as envisaged by the Constitution and interpreted by the superior courts.

The Supreme Court judgment in the Zafar Ali Shah case, which validated military take-over of Oct 12, 1999, described the independence of the judiciary as a basic principle of Pakistan’s constitutional framework, which cannot be tampered with.

As for ensuring the safety and security of judges and witnesses, declared objective of the new law, it was the executive’s responsibility to protect the life and limbs of all citizens, including judicial officers, lawyers, litigants and witnesses. The government should discharge its duty by strengthening and streamlining its law enforcement instead of inducting military into the judiciary.

The LHCBA particularly cited the Sharaf Faridi, Al Jihad Trust, Mehram Ali and Liaquat Hussain cases in support of its contentions.

The presence of army officers as judges in courts of law with a specific mandate but with little knowledge of law, it said, would tip the scale of justice in favour of the shifting sands of government policies and expedients.

The petition also referred to Punjab Law Minister Khalid Ranjha’s recent allegation, and emphasized that the existing anti-terrorist regime was working satisfactorily. The ATA was thoroughly examined by the Supreme Court and was based on its judgment in its present shape.