Seeking court's authoritative determination over a number of questions of law in the matter, Rizvi urged the apex court to declare the (Act XI of 2017), Pakistan Army (Amendment) Act, 2017 and (Act XII of 2017), Constitution (23rd Amendment) Act, 2017 invalid.
The bar requested the apex court to decide whether the creation of military courts and their extension would be tantamount to acknowledgement of failure of the judiciary and the judicial system under the Constitution. It further sought determination of the court whether the function and role of judiciary to dispense justice under the Constitution can be outsourced to a branch of executive organ of the state, the military.
The petitioner urged the court to decide the question of law whether the essential part of curbing terrorism in Pakistan belongs to the executive organ of the state which includes the functions of apprehension of the terrorists, their investigation and prosecution before the courts of competent jurisdiction like the Anti Terrorism Courts. He also questioned how the courts can be burdened/blamed with the failure of the executive to perform its aforesaid functions.
Rashid A Rizvi requested the apex court to determine another question of law whether the judiciary can be saddled with the failure of the executive organ of the state to apprehend, investigate and prosecute terrorists and whether the right to fair trial and due process can be dispensed with on the pretext of fighting war against terrorism.
"Whether have the military courts under the 21st Amendment been proved to be a failed experiment in the past two years under the 21st Amendment? If so, whether is there any justification to extend the period of such an experiment?" Rizvi submitted. The SCBA president requested the court to determine another question of law whether the executive can perform functions of the judiciary and whether the scheme of separation of powers permit a branch of the executive to perform judicial functions of determining a criminal charge against any person.
Another question of law has been placed before the court whether the military courts afford adequate protection of a fair trial and due process of law and whether amendment in the Pakistan Army Act violates Article 10-A of the Constitution. SCBA President Rashid A Rizvi submitted, "Keeping in view its history and tradition, the petitioner's association is deeply disturbed and concerned due to the introduction of military courts in the first place and amendment in the Constitution for that purpose."
He added that for being violative and repugnant to the basic structure and salient features of the Constitution as well as fundamental rights the amendment is invalid saying, "SCBA is also concerned over the extension in the period of working of the military courts for another two years under the Constitution (23rd Amendment) Act, 2017 and Pakistan Army (Amendment) Act, 2017."
The SCBA prayed that Constitution (21st Amendment) Act, 2017, (Act XII of 2017) and Pakistan Army (Amendment) Act, 2017 (Act II of 2017) may kindly be declared to be invalid for being violative and repugnant to the basic structure and salient features of the Constitution as well as fundamental rights.
It is important to mention here that on March 20 last, the National Assembly has passed 23rd Constitutional Amendment in the Pakistan Army Act by extending the tenure of military courts for another two years. Military courts were established and granted permission to try civilians charged with terrorism in January 2015 after a wave of terrorism including a brutal attack on the Army Public School Peshawar in December 2014, through a constitutional amendment.
The SCBA recalled that the apex court in the case of District Bar Association, Rawalpindi (PLD 2015 S.C. 401) held that the military court under the 21st Amendment is a temporary measure. Rizvi added that by extending the period of the same through the 23rd Amendment, this temporary measure is being rendered into a permanent one, thus negating the very rationale of the said judgement.
The SCBA submitted that the military courts over the past two years have proved a failure in relation to combating terrorism in Pakistan, adding that there is no justification in repeating or extending such an experiment thus the 23rd Amendment has given life to a failed experiment and situation.
He said that it has been held by the apex court that validating the military courts under the 21st Amendment was an exception for two years because of the war on terrorism, adding that but, an exception, if repeated, would assume the character of a rule rather than an exception.
Rizvi said that during the period of two years, a certain number of trials before military courts have purportedly been held and a number of persons have purportedly been sentenced to death, life imprisonment or other punishments. "Despite failure of the military courts in combating terrorism, the political parties in the Parliament have been forced to agree to the extension in the period of military courts through a new amendment in the Constitution," Rizvi submitted.
Rizvi further submitted that the SCBA is fully cognisant of the principles settled in relation to the authority of the Parliament to amend the Constitution, yet, it is an undeniable fact and has repeatedly been held by this court that the Parliament's power to amend the Constitution is neither unlimited nor unbridled and therefore, it cannot pass an amendment in the Constitution which abrogates or takes away the fundamental rights of its citizens.
Copyright Business Recorder, 2017