ISLAMABAD: As the Supreme Court resumes hearing on the petitions challenging the 21st Amendment on Thursday, the Pakistan Bar Council has renewed its call to observe the day as ‘black day’ across the country to oppose the setting up of military courts.

The PBC, the premier supervisory body of lawyers, has asked members of the bar associations to wear black armbands on the day while appearing in courts and to hold protest meetings.

Also read: Lawyers vow to resist military courts

The call was given in line with a strongly worded resolution adopted by the PBC at its meeting on Jan 27. The resolution had observed that the council was extremely disturbed at the manner in which the amendment was passed by parliament.

It also said the setting up of military courts had severely undermined the principle of independence of the judiciary and deprived citizens of due process particularly because it violated fundamental rights of people enshrined in Articles 9, 10, 10-A and 25 of the Constitution.

A Supreme Court bench comprising Chief Justice Nasir-ul-Mulk, Justice Gulzar Ahmed and Justice Mushir Alam will take up the petition of the Lahore High Court Bar Association requesting the court to declare the 21st Amendment to be in conflict with the basic structure and features of the Constitution because it abrogates and takes away the fundamental rights of the people of Pakistan.

The PBC and the Supreme Court Bar Association have also filed separate but identical petitions requesting the apex court to interpret the 21st Amendment and hold that the jurisdiction of military courts should not extend to civilians because this is inconsistent with the fundamental rights guaranteed in the Constitution, the principle of separation of powers and the independence of judiciary.

The petitions have asked the court to declare the Pakistan Army (Amendment) Act, 2015, as ultra vires of the Constitution since it is in conflict with Article 203 which asks the high court to supervise the district courts.

The petitions have also asked the court to revisit the May 12, 2000, Zafar Ali Shah case judgment in which a 12-judge Supreme Court bench headed by then chief justice Irshad Hasan Khan had held that on Oct 12, 1999, a situation had arisen for which the Constitution provided no solution and the intervention of the armed forces through an extra-constitutional measure had become inevitable. The controversial measure was therefore validated on the basis of the “doctrine of state necessity”.

However, the most significant development of the day was failure of the federal government to file a reply before the Supreme Court, though a reply on behalf of the Khyber Pakhtunkhwa government did come in support of the amendment.

At the last hearing on Jan 28, the Supreme Court had issued notices to Attorney General Salman Aslam Butt and the advocate generals of the four provinces including that of the federal capital territory with a directive to come up with their stance on the petitions.

In its reply the KP government has supported the amendment saying that extraordinary situation prevailing in the country called for extraordinary measures to counter the rising trend of militancy and terrorism, especially because KP was the most affected province.

The reply has also cited Article 239(5) of the Constitution which bars challenging any constitutional amendment in any court on any ground as well as Article 239(6) which suggests that parliament is the only forum available to remove or resolve any doubt by amending any provision of the law.

Thus, he said, parliament was the only forum which could modify or alter the 21st Amendment.

Published in Dawn February 12th , 2015

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