KARACHI: The legal fraternity in the province on Wednesday rejected the establishment of military courts for trial of terrorists as the Sindh High Court Bar Association resolved to challenge the 21st amendment to the Constitution in the Supreme Court.

The amendment bill seeking to set up speedy military courts to try civilian terrorism suspects was adopted unopposed by parliament on Jan 6 in the aftermath of a massacre at the Army Public School in Peshawar.

The SHCBA vehemently condemned the proposed establishment of the military courts for trial of terrorists and resolved to challenge the amendment to the Constitution in the apex court.

An emergency meeting of the SHCBA was held in the bar room to consider the proposed establishment of the military courts to try offences of terrorism.

The participants in the meeting presided over by SHCBA president Barrister Abid S. Zuberi and attended by office-bearers adopted a unanimous resolution that authorised the SHCBA president and the honorary secretary to file a constitutional petition before the apex court challenging the constitutional amendment.

The resolution said that the SHCBA stood firmly behind the government and the armed forces in the war against terrorism. It said that the bar association was of the view that any amendment for setting up military courts for trial of terrorists by amending the Constitution shall be ultra vires of the basic structure of the Constitution and would amount to creating a parallel judicial system, besides adversely affecting the dispensation of justice through courts.

The association was further of the view that it was imperative to strengthen the antiterrorism laws, witness protection programme, investigation methods and protection of judges as it could lead to effective enforcement of laws against the accused.

The resolution further said that the SHCBA was of the view that the state could not abandon the principles of the rule of law and due process despite being engaged in a war against terrorism. “The rule of law and due process of law are fundamental to the dispensation of justice through the courts presided by judicial officers,” it added.

Therefore, the resolution said, the SHCBA resolved to challenge before the apex court the 21st constitutional amendment as being contrary to the basic structure of the constitution and “trichotomy of power”.

The SHCBA reiterated that it stood behind the government and armed forces, but at the same time it could not remain oblivious of its obligations to defend the Constitution.

Meanwhile, leading lawyers in the city expressed their surprise over the “mysterious silence” of the Supreme Court Bar Association on the issue.

Senior lawyer of the Supreme Court Syed Ghulam Shah said that the SCBA must play its due role for the independence of the judiciary. He said that fingers were being pointed at the apex body of the legal fraternity due to its “indifferent attitude” towards the issue of the military courts.

He said that the establishment of the military courts was against the basic spirit of the Constitution and it was tantamount to shattering the foundations of the sacred document.

The senior lawyer said that parliament had adopted an unconstitutional amendment for its own interest.

Barrister Zamir Hussain Ghumro said that the military courts were established in violation of Articles 175 and 203 of the Constitution.

He said that the amendment was made in violation of provincial autonomy as the federal government did not have the mandate to establish criminal and civil courts in provinces under the Federal List and after the 18th amendment as the law and order was a provincial subject.

Advocate Ghumro said that the SCBA was also stated to have decided to move the apex court against the establishment of the military courts.

Published in Dawn, January 15th, 2015

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