ISLAMABAD: The Lahore High Court Bar Association (LHCBA) has moved a petition in the apex court, challenging the 23rd Amendment to the Constitution and the Pakistan Army (Amendment) Act, 2017, under which extension has been granted to military courts.
The Supreme Court Bar Association of Pakistan (SCBA) and Pakistan Bar Council (PBC) have moved similar petitions.
According to the LHCBA, the 23rd Amendment had curtailed fundamental rights. "It is also against independence of judiciary and separation of powers," the petition stated.
The instant petition, under Article 184 (3) of Constitution, has been filed by LHCBA president Chaudhry Zulfiqar Ali, making the federal government and all the four provincial law departments as respondents.
Earlier on January 6, 2015, Parliament had passed the 21st Amendment to establish military courts for the tenure of two years for trying civilians, who were accused of terrorist acts.
The 21st Amendment and the Pakistan Army (Amendment) Act, 2015 was also challenged before the top court. The full court 17 judge heard the petitions. However, these petitions were dismissed by a majority 11 to 6.
During their tenure of two years, the military courts sentenced a number of persons to death or life imprisonment.
"It is, however, shrouded in mystery where these military courts actually held their proceedings, who were the accused persons, who appeared as witnesses during the trial, who defended the accused persons as their counsel and when the judgments were actually announced," stated the LHCBA's instant petition.
"Thus there is no transparency in holding such trials. The norms of fair trial and due process appear to have never been complied with," the petition stated.
"The LHCBA is of the opinion that any reduction in the terrorist acts may be the result of some success in the military operations Zarb-e-Azb. But some very gruesome attacks, including the Quetta Civil Hospital blast took place during these two years despite the military courts," the petition stated.
"Thus, there appears to be no effect of establishment of military courts on terrorism," the LHCBA stated, adding that it appeared that the idea of combating terrorism through establishment of military courts had completely failed.
The LHCBA further argued that the top court had repeatedly held that the Parliament's power to amend Constitution was neither unlimited nor unbridled. "Therefore, it cannot pass any such amendment which abrogates the fundamental rights," he said.
LHCBA further contended that the top court had held in a similar case that the basic features of the Constitution, including fundamental rights, separation of powers, independence of judiciary, federalism and parliamentary form of government should be saved from the amending powers of the Parliament.
The petition stated that the fundamental rights would be meaningless if there was no independent judiciary to protect and enforce them.
"Consequently, when there is no independence of judiciary, there are virtually no fundamental rights," the petition stated.