ISLAMABAD - Accepting a constitutional petition against the establishment of military courts for preliminary hearing, the Supreme Court Thursday fixed it for January 28.

A three judge bench, headed by Chief Justice Nasirul Mulk and including Justice Gulzar Ahmad and Justice Mushir Alam, will take up the plea of the Lahore High Court Bar Association (LHCBA) for initial hearing, wherein senior lawyer Hamid Khan and Shafqat Chohan will argue the case.

The LHCBA through its secretary has filed the petition under Article 184(3) of the constitution, making federal and all provincial governments respondents. The Bar has requested the court to declare the 21st constitutional amendment unconstitutional as it violates the basic structure and features of the constitution.

It further prayed that the said amendment effectively abrogates and takes away the fundamental rights of the people of Pakistan guaranteed by Chapter I of Part II of the Constitution and consequently cannot be allowed to remain part of text of the constitution.

The petition contended that the very concept of civilian citizens of this country being tried by special military courts is simply shocking and absurd, and is actually an invasion on the authority of the judiciary as a whole; the same, therefore, cannot be allowed to sustain.

It is an undeniable fact and has repeatedly been held by the SC that the Parliament’s power to amend the constitution is neither unlimited nor unbridled and therefore it cannot pass an amendment in the constitution which abrogates or takes away the fundamental rights of its citizens, it maintained.

The petition further stated 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 in the judicial framework of the constitution. The LHCBA said that independence of judiciary and enforcement of the fundamental rights are of such paramount importance and so vital to the survival of democratic constitutional system and dispensation that they cannot be left at the mercy of temporarily changing and shifting exigencies and expediencies.

“The basic elements of the constitutional contract between the people and the state recognised by the founding fathers of the constitution should always be saved and safeguarded. The judiciary as the ultimate arbiter and interpreter of the constitution has a duty and obligation to safeguard such vital foundations of the constitution from majorities in parliament.”

The petitioner further stated that the judiciary is a guardian and guarantor of the fundamental rights of the people of Pakistan, particularly in relation to equality before the law, equality of status, equality of opportunity, freedom of expression, belief, faith, worship and association and rendering of social, economic and political justice. The fundamental rights would be of no consequence unless there is an independent judiciary available to guarantee and enforce them, it added.

LHCBA President Shafqat Mahmood Chohan had filed the petition in the SC Lahore Registry on Monday, contending formation of military courts as against the spirit of the constitution. Chohan said that unfortunately the political parties had supported 21st amendment in the parliament which was in negation of the constitution as the constitution did not provide any room for military courts . He had said such courts were being made to destroy the judicial system of the country. He said the lawyers would foil this conspiracy against the judiciary.

General body meeting of Lahore High Court Bar Association (LHCBA) on January 14 had allowed its elected leadership to challenge 21st constitutional amendment before the Supreme Court. Bar’s secretary Mian Ahmad Chachar presented a resolution before the house that was passed unanimously. The LHCBA is also arranging second All Pakistan Lawyers Representative Convention on January 28 on the same issue. Besides LHCBA, Maulvi Iqbal Haider, Shahid Orakzai and Communist Party Chairman Engineer Jamil Malik have also challenged the military courts but their petitions have not been numbered yet.