Full court hearing: Military courts nothing new, says LHCBA counsel

Says 21st amendment has affected a dozen Articles of the Constitution.

ISLAMABAD: The 21st constitutional amendment has directly affected more than a dozen Articles of the Constitution and also curtailed the power of the apex court, Hamid Khan, counsel for Lahore High Court Bar Association (LHCBA), contended before the 17-judge full court of the Supreme Court on Wednesday.

As the arguments on the 18th amendments have been completed, the LHCBA attorney started arguments against the 21st amendment, under which military courts have been established to try civilians involved in terrorist activities.

During the hearing, Hamid Khan, appearing on behalf of LHCBA, contended that over a dozen Articles of the 1973 Constitution are directly affected by the 21st amendment.

The counsel said the 21st amendment would also, in some way, affect other provisions of the Constitution and curtail the power of the Supreme Court.

He said the 21st amendment disturbs, undermines, and perverts the scheme and structure of the Constitution, particularly the trichotomy of power, separation of judiciary from executive, independence of judiciary as an organ of state, access to justice to citizens regarding enforcement of fundamental right, fair trial and due process.

Giving history of the military courts in Pakistan since its creation, the counsel pointed out that the establishment of military court is not a new phenomenon in the country. These were set up during martial laws and democratic regimes.

He said military courts were first established in 1953 to crush the anti-Ahmedya movement in Lahore then in 1958 when first Martial Law was declared, which remained in force till June 1962.

Similarly, Hamid said that on March 25, 1969 General Yahya Khan declared Martial Law, which remained in force till December 20, 1971. The military court in East Pakistan held large number of trials.

He said that in April 1977 mini-martial law was introduced in Lahore, Karachi and Islamabad. The military courts were to be set up but the move was challenged in court.

The LHCBA counsel said on July 5, 1977 martial law was declared which remained in force for eight and a half years. Media persons and civil society groups were tried summarily in special courts under this longest repressive period in Pakistan.

On November 20, 1998, Ordinance on Pakistan Armed Force acting in aid of civil power was promulgated.

Hamid said before expiry of the ordinance it was struck down by the Supreme Court in the Liaquat Hussain case.

On the court query the LHCBA counsel said the apex court upheld martial laws in Dosso, Asma Jillani and Nusrat Bhutto cases. He said in Liaqat Hussain case, the top court had also made an effort regarding the speedy trial of accused persons. The hearing is adjourned till Thursday (today).

Published in The Express Tribune, June 4^th, 2015.