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.