Military courts under the gavel

• SC issues notices to attorney general, advocates general in case against military courts’ establishment
• LHCBA’s counsel claims 21st Amendment, which was made in ‘haste’, has undermined judiciary’s independence, breached several articles of Constitution
• LHCBA President Shafqat Chohan says no lawyer will appear in military courts

During the hearing of a case against the establishment of military courts in the country, the Supreme Court on Wednesday issued notices to the attorney general and the provincial advocates general, seeking a concise statement on the issue within 15 days.

A three-member SC bench, headed by Chief Justice of Pakistan (CJP) Nasirul Mulk, Wednesday heard the petition filed by the Lahore High Court Bar Association (LHCBA) challenging the establishment of military courts under the 21st Constitutional Amendment.

The petition, filed by LHCBA President Shafqat Chohan and Advocate Hamid Khan, contends that military courts violate rights of citizens listed in Article 8 of the Constitution and were therefore unconstitutional.

During the case hearing, questions of public importance were raised, for which notices were issued to the attorney general for Pakistan as well as all the advocate generals and the hearing was adjourned till February 12.

LHCBA’S STANCE:

The LHCBA’s petition states, “The association was fully cognisant of the principles relating to the authority of the Parliament to amend the Constitution, yet, it is an undeniable fact that the Parliament’s power is not unlimited and it cannot pass an amendment that abrogates fundamental rights.”

“The judiciary was a guardian and guarantor of the fundamental rights of the people, particularly in relation to equality before the law, equality of status, equality of opportunity, freedom of expression, belief, faith, worship and association and rendering of social, economic and political justice. These rights would be of no consequence unless there was an independent judiciary available to guarantee and enforce them.”

KHAN SPRINGS IN ACTION:

During the hearing, LHCBA’s counsel Hamid Khan, while referring to Article 175 of the Constitution, contended before the bench that the new constitutional amendment has undermined the independence of the judiciary while Article 175/3 which separates judiciary from legislature has also been affected.

He prayed the court to declare 21st Amendment null and void as it “conflicts with the basic constitutional structure” and constitutes breach of articles 2-A, 4, 8,9, 14, 19 and several others.

The counsel stated that Article 2A and 8 of the Constitution have been affected through this amendment, which secured the independence of the judiciary as well as the fundamental rights of the citizens.

It will be the first time in 39 years that some laws have been amended to affect the first schedule of the Constitution, Khan stated, adding that the trial of civilians in military courts is “suicide attack on constitutional courts”.

Also narrating the legislative process which ensued for the proposed amendments, LHCBA’s counsel contended that the Parliament gave approval to the 21st Amendment and amendment in Army Act “in haste and without meaningful debate”.

When questioned on his opinion about Article 239 of the Constitution by Justice Mushir Alam, Khan said that no constitutional amendment can be challenged in any court of law and also said that he would argue on this aspect as well.

WHILE THE CASE IS NOT DECIDED:

Talking to journalists after the hearing, Khan said that any functioning by military courts till the reply to the notice is received will not be appropriate.

“They should wait for SC decision on this count. Bar associations are shouldering the burden of jobs of the government. Such matters cannot be tolerated any longer. This can hurt national integrity. The government should not worsen the situation by taking such steps,” he said.

Khan claimed that all the lawyers were united on the issue while Pakistan Bar Council has already adopted a resolution on this count. He also warned that no one should remain under any “delusion” as the cases of politicians could also go to the military courts.

LHCBA PRESIDENT TAKES THE STAND:

Talking to reporters outside SC, LHCBA President Chohan said that the Constitution will be defended at all costs and no lawyer will appear in military courts.

“Defending the Constitution was political parties’ job but we are doing it. PML-N has failed in defending the Constitution. No lawyer will appear in military courts,” he maintained, adding that a convention of bar associations is taking place in Lahore on Thursday (today) to evolve future strategy on the issue.