ISLAMABAD - The Supreme Court Wednesday issued notices to legal and administrative representatives of federal and provincial governments on a petition challenging the 21st Amendment for the establishment of military courts.

A three-judge bench, headed by Chief Justice Nasirul Mulk, and including Justice Gulzar Ahmad and Justice Mushir Alam, heard the Lahore High Court Bar Association constitutional petition. Senior lawyer and PTI leader Hamid Khan and Shafqat Chohan represented the LHCBA.

The court noted that the petition raises the questions of immense fundamental importance therefore notices were issued to the Attorney General for Pakistan, Advocate Generals of all the provinces and to the actual respondents (federal and the provincial governments) asking them to file concise statements within a fortnight. The court adjourned the case until February 12.

The legal experts opine the purpose of issuing notices to the AGP, AGs, besides the respondents, is to discuss each and every aspect of the 21st Amendment and the amendment in the Army Act as the parliament passed the amendments without discussing them satisfactorily.

Chohan wanted stay order against military courts but the bench did not find it appropriate at this stage and liked to decide this matter after hearing the AGP and AGs.

The petition filed under Article 184(3) has prayed the court to strike down the 21st Amendment on number of grounds mainly that it undermines the independence of judiciary and principle of its separation from the executive, besides violating the basic features of the constitution. It also says the proceeding before military courts takes away the jurisdiction of superior courts and abridges the fundamental rights of those whose cases will be put up for trial.

Justice Mushir stated the court would also see the Article 239, which says “the constitutional amendments couldn’t be challenged in court”. At the onset of hearing, the chief justice inquired from Hamid Khan why it was needed to establish military courts. Mr Hamid replied after the Peshawar school incident a 20-point National Action Plan was agreed by all the political parties. The point 2 of the NAP concerns the legal fraternity the most as it called for the trial of terrorists by the special trial courts, he added.

He said that an APC was held in which NAP was adopted, adding another APC was held on Dec 22, 2014 in which it was decided to amend the constitution and Pakistan Army Act (PAA) 1952, consequently the two amendments were introduced. “Some discussion took place in National Assembly on constitutional amendment bill and on 6th January it was passed. The same day the Senate also approved the amendment in the constitution and Pakistan Army Act without discussion,” Hamid said.

Upon that Justice Gulzar asked Hamid Khan were not they (PTI) also one of the political parties that passed the 21st amendment. The chief justice inquired from the counsel was he representing the LHCBA or his party. Mr Hamid replied that during the first APC he had opposed the idea of establishing military courts, as a result of that the second APC was held. He told that his party did not participate in the legislation process and all the 34 MNAs of PTI abstained from discussion on the bill in the parliament.

Hamid Khan contended that the 21st Amendment affected Article 175 (3) of the Constitution, which relates to the separation of judiciary from the executive. “It (amendment) dilutes, reduces, hinders and abridges the separation of the judiciary from the executive... Secondly the 21st amendment has changed the First Schedule of the Constitution,” he said.

He argued that it has also affected Article 2A of the Constitution, wherein it has been stated ‘independence of the judiciary shall be fully secured’, and this is the ‘ground norm’ in Asma Jillani case. Hamid Khan further said that the 21st Amendment also affected Article 8 which declares the “laws inconsistent with or in derogation of fundamental rights to be void”. He argued that Article 8 is the most critical and key article regarding the fundamental rights, adding the amendment has now made enforcement of fundamental rights more difficult and beyond the reach.

Justice Mushir Alam questioned whether the 21st Amendment was in the ambit of Article 8. Mr Hamid contended that Article 8 is the key source of enforcing the fundamental rights of the citizens and it prohibits the state from making any law which abridges or takes away the fundamental rights. He said this amendment, after 39 years, has changed the First Schedule of the Constitution, as the first time the First Schedule was changed in 1976 and the amendment was about land reforms and other issues.