ISLAMABAD - The Lahore High Court Bar Association (LHCBA) on Monday challenged the extension to military courts in the apex court.

LHCBA President Chaudhry Zulfiqar Ali filed a petition under Article 184 (3) of the Constitution through Hamid Khan in the apex court. In the petition, the LHCBA president made the federation, through the Law and Justice and Parliamentary Affairs secretary and the four provincial law secretaries, respondents.

The LHCBA prayed to the apex court to declare 23rd Constitutional (Amendment) Act, 2017 (ACT XII of 2017), and the Pakistan Army (Amendment) Act, 2017 (Act II of 2017) invalid for being repugnant to the basic structure and salient features of the Constitution.

It also prayed that since the constitutional amendment had effectively abrogated and taken away people’s fundamental rights guaranteed by chapters I and II of the Constitution, it may kindly be declared that the same cannot remain the part of the text of the Constitution of Pakistan.

It is pertinent to mention that last week, the Supreme Court Bar Association, through its President Rashid A Rizvi, had also challenged the extension of the military courts.

The SCBA had contended that the military courts over the past two years had proved a failure in relation to combating terrorism in Pakistan, so there was no justification to repeat or extend such an experiment. The petition further stated the 23rd Amendment had given life to a failed experiment.

The LHCBA submitted the Constitution envisaged, without any shadow of doubt, trichotomy of powers with all the three organs of the state —legislature, executive and judiciary – having defined areas of jurisdiction and functions.

“Any attempt even by way of a constitutional amendment which destroys the basic structure of the Constitution itself is clearly beyond the powers of the legislature and, therefore, the 23rd Constitutional Amendment is liable to be struck down by the apex court on the touchstone of theory of basic structure and features of the Constitution,” it contended.

The LHCBA further submitted that in order to ensure the independence of judiciary, any such court or tribunal which is not subject to any administrative control or judicial review cannot be allowed to be grafted into the judicial framework of the Constitution.

On March 20, the National Assembly approved amendment to the Pakistan Army Act, extending the tenure of military courts for another two years.

The 23rd Constitutional Amendment is similar to the 21st Amendment which was enforced in 2015 to establish military courts for a period of two years.

Military courts were established and granted permission, through a constitutional amendment, to try civilians charged with terrorism in January 2015 after a wave of terrorism, including a brutal attack on the Army Public School in Peshawar in December 2014.

The courts had been non-functional since early this year after the expiry of the two-year tenure.

Under the ongoing operation against terrorists, the government again wanted to extend the tenure of military courts to try any civilian under the charges of terrorism.