BOWING to the supremacy of parliament and express language of the Constitution, the Supreme Court of Pakistan has dismissed the challenges to the 18th and 21st Amendments.

Effectively, then, the new military court system designed to try civilian terrorism suspects in virtual secrecy and approved by a two-thirds majority of both houses of parliament in January will resume functioning. Prison sentences and even the death penalty handed down by such courts will, if upheld on appeal, be implemented.

The country is set to have a parallel judicial system for all intents and purposes until the sunset clause in the 21st Amendment expires in 2016. Yesterday was certainly bittersweet: the SC did the right thing in allowing the will of parliament to prevail, but it was the will of parliament itself that was flawed — no democratic system should ever have military courts in the manner and for the reasons they have been foisted on the country by the military leadership after the Peshawar carnage last December.

The judgment itself, nearly a thousand pages long and in two languages, will be closely examined in the days ahead and will have far-reaching implications for a range of issues, from the basic feature/basic structure doctrine to whether future amendments to the Constitution can be challenged in court.

None of that, though, will address a two-fold challenge that the country faces as a result of its elected representatives choosing the profoundly undemocratic path of military courts: reforming the criminal justice system on an urgent basis and ensuring that the life of the new military courts is not extended again for any reason whatsoever in 2016, when the sunset clause in the 21st Amendment will go into effect.

Unhappily, the law ministry seems uniquely ill-equipped — even in comparison to the lack of full-time, ministerial leadership and dysfunction in other key ministries such as foreign affairs and defence — to lead from the front.

The law minister, Pervaiz Rashid, is really the information minister given the additional portfolio because the prime minister is determined to retain Zahid Hamid, who the government has been ordered to indict on treason by the special court handling the Musharraf case, as a key legal adviser.

Mr Hamid, meanwhile, has been tasked with shepherding electoral reforms through parliament, while other special assistants of the prime minister deal with legislative matters on an ad hoc basis. It is hardly a recipe for any government to tackle the profoundly difficult job of criminal justice reform.

Nor is there any real pressure from or initiative within the superior judiciary to tackle administrative reforms of the lower courts. Quite simply, and very unhappily, criminal justice reform is not a priority for the government, the judiciary or parliament — which puts into doubt that the new system of military courts will in fact be disbanded in 2016.

Published in Dawn, August 6th, 2015

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