ISLAMABAD - The Supreme Court Bar Association on Friday challenged the extension to military courts through 23rd constitutional amendment, and also questioned whether the parliament can undo doctrine of separation of powers particularly relating to separation of judiciary from the executive.

It prayed that 23rd Amendment Act, 2017, and Pakistan Army (Amendment) Act, 2017 may kindly be declared invalid and repugnant to the basic structure and salient features of the 1973 Constitution as well as fundamental tights.

It further said that the 23rd constitutional amendment has effectively abrogated and taken away fundamental rights of the people of Pakistan guaranteed by Chapter I of Part II of the Constitution, therefore, it may kindly be declared that the same cannot remain part of the text of the Constitution.

President SCBA Rashid A Rizvi on Friday filed the petition in the Supreme Court under Article 184(3) of the Constitution and made Secretary Ministry of Law and Justice and Secretary Ministry of Defence as respondents.

It said: “Whether the parliament can lawfully amend the Constitution of the Islamic Republic of Pakistan in a manner which tends to destroy or undo the basic/salient features of the constitution itself?”

It submitted the military courts through 21st Amendments were set up in the country two years ago proved a failure to combat terrorism therefore there is no justification to extend or repeat such experiment.

The petition said that two years ago the apex court, while validating military courts under 21st Amendment, held that it was an exception because of the war on terrorism.

It said that apex court in District Bar Association, Rawalpindi case (PLD 2015 S.C. 401) held that the military courts under the 21st Amendment is a temporary measure. However, by extending the period of the same through 23rd Amendment, this temporary measure is being rendered into a permanent one, thus negating the very rationale of the said judgment.

“An exception, if repeated, would assume the character of a rule rather than an exception,” the SCBA petition contends. For this reason as well, 23rd Amendment is liable to be declared invalid, the SCBA contended.

The National Assembly on March 20, 2017 had approved the amendment in the constitution and Pakistan Army Act (PAA) extending the tenure of military courts for another two years. The 23rd amendment is similar to 21st amendment, which was enforced in 2015 to establish military courts for two years.

The military courts were granted permission to try civilians charged with terrorism after a wave of terrorism, including a brutal attack on the Army Public School in Peshawar in December 2014.

The military courts established in January 2015 functioned until 6th of January 2017. During this period of two years, a number of trials before military courts have purportedly been held and a number of persons have purportedly been sentenced to death, life imprisonment or other punishments.

It is, however, shrouded in mystery where these military courts actually held their proceedings, who were the accused persons, who appeared as witnesses during the trial, who defended the accused persons as their counsels and when the judgments were actually announced and at the same time, it is not known as to when did the convicted persons file their appeals and when were the same rejected, the SCBA stated.

It said that only information that was publically received was through newspaper or electronic media that a number of terrorists have been sentenced to death and their appeals have been rejected and that some of them have actually been executed.

It said that there was no transparency in the holding of such trials and norms of fair trial and due process appear to have never been complied with. It said that these purported trials before the military courts, have for all intents and purposes, been non-trials and nullity in the eye of law and the constitution.