Daily Times

ISLAMABAD: The Supreme Court Bar Association (SCBA) on Friday moved a petition in the top court challenging the 23rd Constitutional Amendment as well as Pakistan Army (Amendment) Act, 2017, wherein extension to military courts was granted by the parliament.

According to the SCBA, the provisions of 23rd amendment not only curtailed the fundamental rights but also acted against the independence of judiciary and separation of judiciary from other organs of the state.

The petition, under Article 184 (3) of constitution, is filed by SCBA Secretary General Aftab Bajwa, making federal government, ministry of law and ministry of defence as respondents.

Earlier on January 6, 2015, parliament had introduced the 21st amendment to establish military courts for a tenure of two years for trying civilians accused of terrorist acts.

The 21st constitutional amendment and the Pakistan Army (Amendment) Act 2015 was also challenged before the top court and the case was heard by 17-judge full court. The petitions were, however, dismissed by a majority of 11 to 6.

During its tenure of two years, the military courts held certain number of trials and a number of persons were purportedly sentenced to death, life imprisonment or other punishments.

“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 counsels and when the judgments were actually announced,” stated the SCBAP’s instant petition, adding it was not known as to when the convicted persons filed their appeals and when were the same rejected.

“Thus there was no transparency in the holding of such trials and norms of fair trial and due process appear to have never been complied with,” the petition further stated.

SCBA is of the opinion that any reduction in the terrorist acts may be the result of some success in the military operation Zarb-e-Azab. But, it pointed out, some very gruesome terrorist attacks like Quetta civil hospital carnage, attacks on mosques, shrines, parks and other public places had taken place during these two years notwithstanding the provisions for military court trials.

“Thus there appears to be no nexus between terrorism and establishment of military courts and holding of trials before them,” the SCBA stated in its petition, adding it appeared that the idea of combating terrorism through establishment of military courts under 21st amendment had completely failed and there was no justification in repeating or extending such an experiment.

The SCBA argued that the top court had repeatedly held that parliament’s powers to amend constitution was neither unlimited nor unbridled therefore it could not pass any such amendment which abrogated the fundamental rights. It further contended that the top court had also held, in cases of similar nature, that the basic and salient feature of 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.