ISLAMABAD: As a second petition challenging the 21st Constitution Amend-ment was filed in the Supreme Court on Friday, the Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA), the two premier supervisory bodies of the legal fraternity, were weighing options to devise a joint strategy to react to the military courts being set up under the amendment.

“It is the need of the hour and a high time that the bar councils and associations play a pivotal role against the setting up of special courts headed by military officers,” says senior counsel Yasin Azad, who represents the PBC in the judicial commission which appoints judges in the superior judiciary.

“Meetings have been called for Jan 31, most probably in Lahore. But I think that both PBC and SCBA should hold joint sessions instead of holding separate meetings and decide to challenge the 21st Amendment in the Supreme Court because the representative bodies of lawyers cannot afford to support the military courts,” he said.

Second petition against 21st Amendment filed in SC

But SCBA President Fazal Haq Abbasi was of the opinion that before taking a final decision on the issue, “we would also have to keep in view the public sentiments, especially after the Dec 16 Peshawar school carnage”.

“We are against the military courts but we need to be careful while taking a decision at this crucial juncture when the nation has stood up against terrorism,” Mr Abbasi told Dawn.

Yasin Azad said it would be a test case for the Supreme Court to thoroughly consider and decide on merits the petitions which were coming or might come before it. “It may go out of hand if the situation is not rectified timely.”

Referring to the members representing the bar in parliament who had attended the session during the passage of the 21st Amendment, Mr Azad regretted that earlier “we had only one Sharifuddin Pirzada, but now we have many”.

He was apparently pointing to the role played by Mr Pirzada in legitimising the subsequent military regimes in the past and those lawyers who attended the recently held All-Party Conference and then got the amendment passed in parliament.

“They have established a parallel judiciary by setting up the military courts. The 21st Amendment not only flouts the fundamental rights as guaranteed in the constitution but also tramples upon the concept of fair trial. In fact, the military courts have been established to convict the accused bypassing retrieving solid evidence,” he said.

He said the executive was responsible for the present state of affairs in the country because it had completely ignored the guidelines suggested by the Supreme Court while declaring the military courts illegal through a judgment in the 1999 Sheikh Liaquat Hussain case.

PBC’s executive committee chairman Abrar Hassan was of the opinion that any amendment which impinged upon the fundamentals of the constitution could be challenged in the Supreme Court. “The inherent powers of the apex court cannot be curtailed at any cost in any situation,” he explained.

PETITION: The second petition against the 21st Amendment filed by Pakistan Justice Party Chairman Munsif Malik through Advocate Mohammad Ikram Chaudhry pleaded that the political government and military establishment had resurrected the doctrine of necessity which was buried forever by the Supreme Court through the landmark July 31, 2009, judgment holding the Nov 3, 2007 emergency illegal.

It argued that the amendment was against the principles of equal protection of law and fair trial and asked why some civilians could be singled out for the rigours of military courts whereas the others continued to have the benefit of due process extended to them through normal judicial system.

The petition said the armed forces had been given a free hand to interfere in the judicial system without having experience and understanding of law. The military courts have been given a status they are not entitled to under the constitution. These courts will function under the dictates of their superiors since their objective will be to punish the accused and not to dispense justice.

The petitioner requested the Supreme Court to declare the 21st Amendment and creation of military courts against the salient features of the constitution which guaranteed fundamental rights of fair trial.

The first petition earlier filed by Advocate Maulvi Iqbal Haider requested the Supreme Court to issue guidelines for the executive.

Published in Dawn, January 10th, 2015

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