Lahore Bar Association challenges SC ruling on military courts

Argues that the verdict implies admission that the judiciary has failed to deliver on cases of terrorism

ISLAMABAD:

The Lahore Bar Association (LBA) challenged the Supreme Court’s landmark judgment on military courts on Friday, arguing that the top court by handing down the verdict had admitted the judiciary’s failure to deliver in cases of terrorism.

“Such an implied acknowledgement could be disastrous for the judiciary as an independent organ of the state. Independence of Judiciary has to be protected and defended by this court (SC) in order to avoid any encroachment on the judicial powers by other organs of the state,” read the petition filed in the Supreme Court on LBA’s behalf by senior lawyer Hamid Khan.

In the majority ruling delivered on August 5, the full bench of the top court upheld the establishment of military courts to try terror suspects while retaining the superior judiciary’s authority to review any judgment passed by them.

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“The judiciary cannot be saddled with responsibility for the failure of the executive organ of the state to apprehend, investigate and prosecute terrorists,” the LBA petition argued.

“It is the duty of the state to protect prosecutors and witnesses before anti-terrorism courts and if the government has failed to provide such protection, then the judiciary or such courts cannot be blamed for escalation of terrorist activities,” it said. “Under 21st Constitutional Amendment, the right of fair trial and due process has been virtually dispensed with,” the petition added.

It also argued that the majority of judges did not include fundamental rights conferred under Chapter I, Part II of the Constitution as part of salient features of the Constitution. “After having recognised democracy, parliamentary form of government and independence of judiciary as the basic salient features of the Constitution, how could the majority judges hold that establishment of military courts does not violate such basic salient features.”

The petition also contended that the August 5 verdict suffers from contradiction since it upholds military courts on one hand but declares their judgments liable to judicial review, on the other.

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The LBA counsel requested the Supreme Court to accept its petition and declare the 21st Amendment to be in violation of the basic features of the Constitution.

Published in The Express Tribune, August 29^th, 2015.