(ATTOCK – PR- January 19, 2015) Communist Party of Pakistan (CPP) challenges the ‘military courts’ and 21st Constitutional and Pakistan Army Amendment Act, 2015 in the Supreme Court of Pakistan. By virtue of these amendments, the Army can trial any civilians in ‘military courts’, copy of CPP whole petition can be read at party website of www.cpp.net.pk
This constitutional petition of CPP is filed by its Central Chairman, Engineer Jameel Ahmad Malik under Articles 184(3) of the 1973 Constitution against the Federation of Pakistan, National Assembly and Senate of Pakistan praying the Apex Court to strike down these amendments.
In petition, the CPP Chairman wrote “Communist Party has bad memories about the Military Courts established during General Zia era in which our party former General Secretary Jam Saqi and other leaders of Party Prof. Jamal Naqvi, Sohail Sangi, Badar Abro, Kamal Warsi, Amar Lal and Shabir Shar was arrested and tried in a Military Court headed by Colonel Atiq Hussain on the charges of terrorism and anti-state.”
This case is also known as communist case or Jam Saqi case and during the military trial of Jami Saqi case, Engineer Jameel said “many stalwarts such as Baloch leader Mir Ghous Bux Bizenjo, Benazir Bhutto, Khan Abdul Wali Khan, Tahira Mazhar Ali Khan, Mairaj Mohammad Khan, Fatehyab Ali Khan, Maulana Shah Mohammed Amroti and among the journalists Minhaj Burna, Afzal Siddiqui, Shaikh Ali Mohammed, Shaikh Aziz, Abdul Ghani Dar, Abdullah. J Memon then commissioner and others appeared as defence witnesses but the ‘Military Court’ did not consider any evidence of the defence witnesses and sentenced Jam Saqi and all others communist leaders unlawfully and illegally for ten years.”
CPP said that the military courts would now do the same justice to the workers of religious parties and their rivals as was done with CPP in the past.
Communist Party in his petition wrote that “it was also wrong to say that the judiciary had failed because they had handed down convictions to nearly 8,000 death row prisoners and that it was not the judiciary’s fault, if these sentences were not carried out and the rulers themselves did not execute the condemned criminals on the pressure of the USA, the European Union (EU) and the greed for dollars.”
In the petition, the Communist Party has prayed the Supreme Court to set aside the 21st Constitutional Amendment and Pakistan Army Amendment Act, 2015 as these amendments are against the basic features and structure of 1973 Constitution and also against the Fundamental Rights of Articles 8, 9, 10, 10A, 14, 17, 19 and 25 whereas these amendments are also in violations to Articles 2A, 4, 5, 6, 175 and 190 of 1973 Constitution and runs parallel to the existing judicial system.
The parliamentarians even bypass and ignore the Supreme Court judgment as given in Mehram Ali v. The Federation (PLD 1998 SC 1445) and Liaquat Hussain Case (PLD 1999 SC 504) which declared the Military Courts as un-constitutional.
The Parliament and Senate while passing the 21st Constitutional and Army Amendment Act, 2015 has not only undermined the parliament, democracy and judiciary but has also curbed, curtailed and infringes the fundamental rights of citizen and the fair trial and due process of law of Court under Article 10A has also now been jeopardized.
Engineer Jameel said and stressed in his petition that any Parliament do have a right to amend the Constitution and make law but the Parliament cannot amend the basic doctrine of Constitution vide held in judgment WUKALA MAHAZ BARAI TAHAFAZ DASTOOR versus Federation of Pakistan (PLD 1998 SC 1263) and also cannot enact any law, which curbs, curtails and infringes the fundamental rights of the citizens.
13 questions of law point have been raised in the petition. The foremost questions in this petition are whether the Parliament is empowered to amend the constitution against the basic structure and can enact any law which infringes the fundamental rights of citizens as given in Articles 8, 9, 10, 10A, 14, 17, 19 and 25 and can also curtail the powers of the Independence of Judiciary as enshrined in Articles 2A, 175 and 190 of 1973 Constitution.
In petitioner opinion “The Supreme Court has all the powers to examine whether any constitutional amendment has been made in line with the basic scheme or totality of the Constitution or not,” just in a way the Indian Supreme Court had struck down some Articles of the Indian Constitution by introducing the “principle of basic structure of the Constitution”.
These amendments fully curtail the freedom of speech and freedom of the press as enshrined in Article 19 of the 1973 Constitution as now after these amendments, the print and electronic media are barred to write and broadcast or air any news or to telecast any interview concerning the Talibans and terrorists during their trial in the military courts in contrary to the Article 19 which allows the freedom of speech and freedom of the press.
It is now open secret that the Prime Minister Nawaz Sharif, his PMLN and its allied parties in the parliament and other bourgeoisie political and religious parties in parliament voted for ‘military courts’ under the fear and pressure from the Army.
The parliamentarian this act is a severe violation of the oath taken by them to protect, safeguard and defend the Constitution of Pakistan. The justice demands that all these parliamentarians who voted for ‘military courts’ should be put to trial under Article 6 of the Constitution.
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