ISLAMABAD: Lahore High Court Bar Association (LHCBA) Friday filed a review petition in the Supreme Court (SC) questioning as to whether validation of military courts is an implied admission and acknowledgment by the apex court of failure of the judiciary and the judicial system under the constitution. Chaudhry Ishtiaq Ahmed Khan, the LHCBA president, filed the review petition in the SC through senior advocate Hamid Khan, praying to review its judgment delivered on August 5, 2015, upholding the establishment of military courts in the county to try hardcore terrorist. A 17-member bench of the apex court on August 5, 2015 after dismissing identical petitions with 11-6 decision, challenging the (21st Constitutional Amendment) Act, 2015 and Pakistan Army (Amendment) Act, 2015, upheld the establishment of military courts. The court, however, had held that all decisions of military courts would be subject to judicial review. The 21st Constitutional Amendment was passed in January as part of a crackdown on militancy following a Taliban massacre at the Peshawar Army Public School which left more than 150 people — mostly students — dead. The court had also dismissed petitions against the 18th Constitutional Amendment in a wide 14-3 decision. On Friday, the LHCBA prayed the apex court to review its judgment and the 21st Constitutional Amendment) Act, 2015 and Pakistan Army (Amendment) Act, 2015 be declared as invalid repugnant to the basic structure of the constitution particularly independence of judiciary, separation of powers and fundamental rights. It contended that having recognised democracy, parliamentary form of government and independence of judiciary as the basic structure and features of the constitution by the majority, how could the majority hold that establishment of military courts does not violate such basic salient features. “Whether, the majority judgment is contradictory in terms by upholding military courts coupled with jurisdiction to review their decision on three criteria of coram non judice, malafide and without jurisdiction,” the review petition contended. The LHCBA further questioned as to whether validation of military courts is an implied admission and acknowledgment by the apex court of failure of the judiciary and the judicial system under the constitution?. It argued that on the one hand military courts established under the Army Act 952 read with Constitution (21st Amendment) Act 2015 have been held to be valid while on the other hand their judgments have been subjected to judicial review on the criteria of coram non judice, malafide and without jurisdiction. The review petition contended that this court by validating military courts appears to have impliedly admitted and acknowledged that the judiciary and the judicial system under the constitution has failed to deliver in matters of fight against terrorism. Such an implied acknowledgement could be disastrous for the judiciary as an independent organ of the state and independence of judiciary has to be protected and defended by the court in order to avoid any encroachment on the judicial powers by other organs of the state, the review petition submitted. It contended that it is the primary function of the executive to curb terrorism in the country and it is for the executive organ of the state to apprehend the terrorists, investigate them and their activities and collect evidence and finally prosecute them before the competent jurisdiction like anti-terrorism courts. Similarly, the review petition stated that it is the responsibility of the government to protect the judges of Anti-Terrorist Courts besides it is the duty of the state to protect the prosecutors conducting the terrorism trial and witnesses deposing before such anti-terrorism courts. “In any case, the judiciary cannot be saddled with the responsibility for the failure of the executive organ of the state to apprehend, investigate and prosecute terrorists,” the review petition contended. This court has omitted to mention separation of power while enumerating basic, salient features of the constitution and this omission may kindly be supplied, the review petition requested. It recalled that in Liaqat Hussain Case (PLD 1999 SC 504), the apex court had held categorically that the military courts are outside the pale of the constitution; therefore, it follows that if something is so held unconstitutional, than how it be deemed as constitutional only by making a formal amendment in the constitution. What is alien to the constitution cannot be made kosher by its mere inclusion through constitutional amendment, it said. The LHCBA contended that the apex court did not fully appreciate the true import of the rationale in the judgment in Liaqat Hussain’s case. It has made federation through Secretary Ministry of Law and Justice and Parliamentary Affairs and four provinces through its Law Secretaries as respondents.
