KARACHI, Feb 12: The proposed induction of serving army officers into the anti-terrorism courts, through recent amendments to the Anti-terrorism Act, was challenged in the Sindh High Court on Tuesday.
The President of the Sindh High Court Bar Association (SHCBA), Abul Inam, has filed the constitutional on behalf of his association, praying for declaring that the amendments made to sections 13, 14, 15, 16, 21 and 28, by the promulgation of the Anti-terrorism (Amendment) Ordinance, 2002, are in violation of the provisions of article 173 (3) of the constitution are void, inoperative and of no legal effect.
It is the contention of the plaintiff that the amendments are contrary to, and inconsistent with, the provisions of article 2 (a) sub-section (3) of article 175 of the constitution.
The petitioner has taken the position that sub-section 2 of the impugned Ordinance amending subject Act of 1997 by leaving it to the High Court concerned to specify the each territorial area for establishment of anti- terrorism courts is ultra vires of the constitution inasmuch as it requires the High Court concerned to pre-determine and pre-judge the necessity for establishment of such special courts, having regard to the alleged acts of terrorism in a particular area.
Such determination by the High Courts, it is contended, does not and cannot fall within the administrative functions of a High Court.
It has also been contended that the provisions of section 3 of the impugned Ordinance have directly reintroduced the powers of the government to appoint a personnel belonging to non-judicial branch of administration to perform judicial functions, when such person is neither under the control nor under the supervision of any High Court in respect of his appointment or terms and conditions of his service, nor can he be brought under the supervision of the High Court for any purposes whatsoever.
Under the present dispensation in the country, the nomination of a person belonging to the armed forces, enjoying a rank not below the rank of lieutenant-colonel, would clothe him with the authority to have the final say in the matter, or at least it would so appear that he would have the final say in the matter which would not only affect the separation of the judiciary but its very independence, the petitioner maintained.
In such a situation decision of a court would not be accepted as unbiased and uninfluenced decisions and such an approach would destroy the very basic principle that justice should not only be done but should also appear to have been done.
The above submission is further strengthened by the fact that to accommodate the member of the anti-terrorism court belonging to the armed forces, a provision had been made through Section 4 of the amended impugned Ordinance by amendment to section 15 of the Act permitting the holding of trial at even in a cantonment area.
It has been contended that the very trial of an ordinary citizen in a cantonment area will further destroy the faith of the citizen in the judicial dispensation under the new arrangements, which clearly appear to be made to give control to the armed forces in associating a member of the armed forces with the judiciary, with the blessings and under the auspices of the High Courts, which will have its own repercussions.
The powers conferred on the joint investigating team for investigation in terms of the amendment made to section 7 of the amending Ordinance further complicate the matters in respect of the independence and separation of judiciary from the executive, as the personnel of investigating teams coming under the control of armed forces can also have a say in the matter of investigation. As such investigation will also have its own influence on the final judgment of the newly-established Court in view of the constraints of discipline in the armed forces.
The SHCBA has maintained that associating personnel of the armed forces with the performance of judicial functions in a particular class of controversial cases, besides being violative of article 175 of the constitution, is an ill- advised measure which is likely to create mischief and become a cause of unhealthy and unhappy relations between the judiciary and the armed forces.
The petitioner has maintained that ever since the provisions of the article 175 (3) of the constitution became fully effective and operative and operation was further guaranteed by the declarations made by the superior courts from time to time with regard to the independence of judiciary, attempts have been made by the executive to make inroads into such independence by moulding some of the statutes.