As the military court issued its first verdict awarding the death penalty to six terrorists on Thursday, the chief justice of Pakistan Nasir ul Mulk has constituted a 17-judge full bench to take up more than a dozen constitutional petitions on April 16 against the establishment of military courts.
Military courts have been established through the 21st constitutional amendment to try civilians who wage war against the state in the name of religion or sect.
A three-judge bench of the Supreme Court, headed by Justice Anwar Zaheer Jamali, referred the matter to CJP Nasirul Mulk on February 24 and requested him to constitute a full bench court to hear several constitutional petitions against the 18th and 21st constitutional amendments. The top court will also examine in this matter whether the constitution of Pakistan has basic structure or not.
Lahore High Court Bar Association is the main petitioner in 21st constitutional amendment case. Top jurist Hamid Khan on behalf of LHCBA believes that the constitution has basic structure, which cannot be altered through constitutional amendments.
Challenging the establishment of military courts, the bar associations have claimed before the Supreme Court that the 21st Constitutional Amendment is passed by parliament under pressure from the military high command.
The superior bars have requested the SC to interpret the 21st Constitutional Amendment as being inconsistent with Article 175(1), 203 and 4 as well as fundamental rights, the principle of separation of powers and the independence of judiciary and therefore the jurisdiction of Court Martial (Military Courts) should not extend to civilians.
Abdul Latif Afridi and Abrar Hassan are appearing on behalf of PBC and Asma Jahangir is representing the SCBA in this case. Federal and all provincial governments have already submitted their concise statements in favour of the 21st constitutional amendment.
The federation had claimed that the existing civilian law enforcement structure is inadequate and cannot effectively prosecute, convict and sentence terrorists.
AG Pakistan Salman Aslam Butt while submitting the statement stated that prosecutors and witnesses feel threatened and that they do not have adequate or sufficient protection as there are actual instances where judges, prosecutors and witnesses have been threatened or attacked and killed.
Regarding the enforcement of fundamental rights, the statement contends that under the Pakistani constitutional dispensation, abridgment of fundamental rights has been recognised in certain circumstances, adding that the parliament has power to pass laws that may abridge fundamental rights.
“This is a defining moment for this nation, its people and its institution. At this juncture, we face a choice. These terrorist groups want to enforce at gunpoint their ‘ideology’. Either we accept this and let them Talibanise our society or we rise to the occasion and make Pakistan a democratic state based on the Islamic principles of social justice as visualised by Quaid-e- Azam”, says the federation in its statement.
Published in The Express Tribune, April 4th, 2015.