further offends it; consequently, the same is discriminatory and offends the equality principle encapsulated in Article 25 of the Constitution,” said the note.
He was of the view that a terrorist organisation which is not religious or sectarian, may abet a religious or sectarian organisation in the commission of an offence or in a series of events which culminate in a terrorist act.
“For instance, an ethnic organisation may supply explosives or guns to a religious or sectarian organization, which then uses the same in a terrorist act; will then the members of the said ethnic organization be tried separately in an Anti-Terrorist Court or will they also be tried by the military?, The definition of religious or sectarian organizations in the Army Act, which has also been incorporated in the Air Force Act and the Navy Ordinance, does not contemplate such scenarios,” he said.
Justice Isa said the vagueness of the definition and lack of details in the definition clause gives rise to monumental jurisdictional and constitutional problems. An individual who is sent to be tried by the military may declare that he is not a religious or sectarian terrorist and contend that the exercise of discretion by the Federal Government in sending his case for trial by the military was not justified.
“Every law should be explicit and a meticulous effort must be made by the draftsmen to ensure that all conceivable problems are attended to. Even if, for the sake of argument, it be accepted that the categorisation of such type of terrorists does not offend the reasonable classification rule or any provision of the Constitution, such challenges would undoubtedly delay the trial of terrorists rather than achieving the professed objective of ensuring that the terrorists are brought to justice promptly. The law as framed is giving them an unnecessary lifeline,” his note reads.
Meanwhile, in their joint dissenting note, Justices Ejaz Afzal Khan and Ejaz Chaudhry said the 21st amendment is in contradiction of the basic structure of the constitution. They said once an amendment is made, it cannot be in contradiction with the constitution. Justice Asif Khan Khosa and Justice Dost Muhammad Khan also wrote a dissenting note.