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.
* * *
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.According to this account by the Daily Times:
"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 counsel and when the judgments were actually announced," stated the LHCBA's instant petition.
"Thus there is no transparency in holding such trials. The norms of fair trial and due process appear to have never been complied with," the petition stated.
"The LHCBA is of the opinion that any reduction in the terrorist acts may be the result of some success in the military operations Zarb-e-Azb. But some very gruesome attacks, including the Quetta Civil Hospital blast took place during these two years despite the military courts," the petition stated.
"Thus, there appears to be no effect of establishment of military courts on terrorism," the LHCBA stated, adding that it appeared that the idea of combating terrorism through establishment of military courts had completely failed.
The LHCBA further argued that the top court had repeatedly held that the Parliament's power to amend Constitution was neither unlimited nor unbridled. "Therefore, it cannot pass any such amendment which abrogates the fundamental rights," he said.
LHCBA further contended that the top court had held in a similar case that the basic features of the Constitution, including fundamental rights, separation of powers, independence of judiciary, federalism and parliamentary form of government should be saved from the amending powers of the Parliament.
The petition stated that the fundamental rights would be meaningless if there was no independent judiciary to protect and enforce them.
"Consequently, when there is no independence of judiciary, there are virtually no fundamental rights," the petition stated.We may have missed something, but the bar associations seem not to have made too much of a ruckus when the 23rd Amendment was being considered by Parliament. Why not?