ISLAMABAD: Saddened by the Aug 5 Supreme Court majority verdict of upholding the setting up of military courts aimed at trying hardened militants, the Lahore Bar Association — one of the challengers to the 21st Amendment — is contemplating to move a petition seeking a review of the judgment.

“The Lahore Bar Association has given me a go-ahead to prepare a review petition against the verdict validating the 21st Amendment,” senior lawyer Hamid Khan said while talking to Dawn.

Mr Khan had pleaded the petitions moved by the Lahore Bar Association Court as well as the Lahore High Court Bar Association that were heard by the 17-judge full court of the Supreme Court.

“Given the 30-day period when the review against any judgment can be filed, we still have ample time to move the review petition,” he said, adding that the review petition would definitely be moved by the end of this month.

Mr Khan explained that his client as well as he himself was not satisfied, rather aggrieved with the judgment.

By a majority of 11 to 6, the Supreme Court had made it clear that it can review any decision on part of the federal government to select and refer the case of any accused or militant for the trial by the special court manned by military officers under the Pakistan Army Act, 1952.

When his attention was drawn towards the right of judicial review provided in the majority judgment against any sentence awarded by military courts if the condition of fair trial was not met, Mr Khan said: “This is not enough since it provided a very limited option to move a writ petition that too on three grounds namely the sentence or conviction awarded by the military courts must have been suffering with mala fide, coram non judice or being without jurisdiction.”

Authored by Justice Sheikh Azmat Saeed, the majority judgment of the Supreme Court had held that the 21st Amendment and the Pakistan Army (Amendment) Act (PAA), 2015, accumulatively provide, a temporary measure for the trial of terrorists accused of offences, including waging war against Pakistan, by a forum already constituted under the law and consistent with a recognised procedure already available for and applicable to personnel of the Pakistan Army.

The enlargement of the jurisdiction of such forum is subject to due compliance with an ascertainable criteria constituting a valid classification having nexus with the defence of Pakistan and does not abrogate, repeal, or substantively alter the salient features of the constitution, the judgment signed by eight judges of the Supreme Court had held, adding the provisions of the 21st Amendment as such were intra vires (in accordance with) the Constitution.

The judgment had further stated that a temporary measure targeting a very small specified clearly ascertainable class of accused had been brought into the net to be tried under the PAA in accordance with procedure which has been held by this court to be consistent with recognised principles of criminal justice.

Similarly, Justice Mian Saqib Nisar in his judgment had emphasised that the impact of the 21st Amendment in relation to the jurisdiction of the superior courts was that the amendment had been expressly limited to remain in force for a period of two years only in the hope and expectation that by that time the existential threat, being faced by the country would have been resolved.

Thus, this is explicitly a temporary provision intended to meet a specific crisis. It is not intended to remain a part of the permanent structure of the Constitution.

Likewise, the provisions of 21st Amendment had no application to the trial of persons belonging to terrorist groups or organisations. Thus, the legislative intent has been made clear beyond any doubt.

“If we revert, for a moment, to the position in the United States it may be noted that although no constitutional amendment was introduced for to the fight against terrorism or the war against terrorism, a number of decisions by the Supreme Court of the United States has made clear its considered view that due deference must be given to the executive for and in relation to the war against terrorism,” the judgment had held.

Published in Dawn, August 15th, 2015

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