ISLAMABAD: The federal government urged the Supreme Court on Monday to respect its decision of trying terrorists in military courts because these had been set up under the 21st Amendment in consultation with all political parties after it had been left with a very limited choice.

The courts were created in accordance with the procedure established by law to try the accused, said a 43-page rejoinder submitted by the government a day before the hearing by the apex court of a set of 13 petitions challenging the 21st Amendment.

Know more: Military courts: How the reluctant were brought around

The Khyber Pakhtunkhwa submitted its reply on Feb 11 and the other three provinces on Monday. All the provincial governments supported the amendment and almost endorsed the points highlighted by the federal government in its reply to the challenges.

Since Chief Justice Nasir-ul-Mulk, who was heading a three-judge bench seized with the matter, is indisposed, Justice Anwar Zaheer Jamali will preside over the court on Tuesday.

In its reply, which many believe was written more in a passionate way than in legal terms, the federal government mainly focused on the petition filed by the Lahore High Court Bar Association (LHCBA). The reply was drafted by Additional Attorney General Mohammad Waqar Rana and submitted on behalf of Attorney General Salman Aslam Butt.

It requested the apex court to dismiss the challenges because they had no merit and for the sake of all those who had sacrificed their lives in the war against terrorism, for the sake of children (who died in the Peshawar school attack) and for the sake of the future of the country. The people have spoken through their elected representatives.

The reply rejected the basic structure theory as propounded by the LHCBA in its petition and explained that courts in Pakistan had not adhered to or followed such doctrine which prevented amendments to the Constitution.

AG submits 43-page rejoinder to petitions challenging 21st Amendment

“There is no limitation, impliedly or expressly, based on the doctrine of basic structure, under the Constitution, on the amending powers of the parliament. The 21st Amendment does not violate the fundamental aspects of the Constitution and that the present parliament is fully competent to exercise powers under Articles 238 and 239 of the Constitution which suggest no limitation on the amending powers of the parliament. Besides, amendments are also not amenable to any challenge before any court of law,” the rejoinder said.

About the fundamental rights, it explained that abridgment of such rights had been recognised in certain circumstances and Article 8(3) as well as emergency provisions supported this constitutional position.

“The parliament has the power to pass laws and this amendment should not be set aside on the test of violation of the fundamental rights in the interest of the security and defence of Pakistan and to curb the menace of terrorism,” it said, adding that it was constitutionally implausible to declare one provision of the Constitution void on the basis of its inconsistency with another.

“While the petitioners are concerned about the fundamental rights of those accused to be charged and tried under the new legal regime, they should also spare a thought for the fundamental rights of more than 50,000 Pakistanis who have lost their lives,” the reply said.

“In times of war, all civilised societies strive to strike a balance between the security of the nation and the rights of those suspected of posing a threat to that security. Under the Islamic law, “baghi” (renegade) against a lawful government and state is an offence punishable with death and such rebel terrorists have no rights,” it argued.

About the independence of judiciary, the reply emphasised that the amendment had left the power of judiciary intact and this independence had never been impinged upon as a result of the legal and constitutional measure of introducing the 21st Amendment.

“The concept of the independence of the judiciary like the concept of public policy is very elusive. The courts under the Pakistan Army Act have been established under the laws of Pakistan, their jurisdictions have been recognised and these have been declared as valid courts under the Constitution.

“Their jurisdictions have never been questioned as having been created in violation of the Constitution. It is within the power of the state to determine the forum where a particular accused has to be tried. Moreover, the decision to refer the cases of terrorists to the courts established under the Army Act is justified under the circumstances of the present case and the Constitution permits it,” the reply said.

About the separation of power, it said the Constitution did not recognise a watertight separation of powers like the American constitution. In any case, there is no breach of the principle of separation of powers and that the principle of separation of the judiciary from the executive is not an absolute rule. Besides, it said, the 21st Amendment was time bound and only the cases of certain classes of terrorists were being forwarded.

“This is a defining moment for this nation, its people and its institutions. At this juncture we face a choice. In the face of these attacks, we can either try to adopt something concrete and focus on preventing terrorist attacks in future and bring perpetrators to justice or do nothing.

“These terrorist groups in complete opposition to the Constitution want to enforce at gunpoint their ‘ideology’. Either we accept this and let them ‘Talibanise’ our society and push us to the dark ages or we rise to the occasion and make Pakistan a democratic state based on the Islamic principles of social justice as visualised by Quaid-i-Azam Mohammad Ali Jinnah. This is an existential battle for the sake of the survival of the nation that we love and cherish and for the values that we hold dear,” the reply said.

Published in Dawn February 24th , 2015

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