IT is impossible to overstate the political and constitutional magnitude of the Supreme Court judgement passed on Wednesday. Unfortunately, the 10 separate judicial opinions spread over 902 pages have left many confused about what actually has been decided.
First and foremost, the argument whether the Constitution has a basic structure or not has finally been settled. Thirteen of the 17 SC judges confirm that it does: it comprises “the salient features” of the Constitution. These salient features are to be discerned from a holistic reading of the document and include — at a minimum — “democracy, parliamentary form of government and an independent judiciary”. The parliament cannot, for example, do away with elections and bring in a hereditary form of government. The parliament’s power to amend the Constitution is limited to changes of an “amendatory nature” and does not extend to wholesale and fundamental repeals and revisions. Thus, if parliament adopts an amendment that substantially alters any salient feature of the Constitution, the SC can review it and strike it down.
Only four judges — headed by Chief Justice Nasirul Mulk — take the dissenting view that parliament’s power to amend the Constitution is unfettered. They hold that while one may, for academic or descriptive purposes, highlight certain basic, essential or defining features of the Constitution, at the end of the day the judiciary cannot strike down a constitutional amendment on such basis. To do so would allow the wishes of 17 unelected judges to dominate over the will of elected representatives. Accordingly, all four uphold the 21st Amendment. One of them, however, Justice Asif Saeed Khosa, goes on to hold that the establishment of military courts to try those accused of religious/sectarian terrorism was nonetheless unlawful as the 21st Amendment — due to certain technical reasons and quite contrary to public impression — did not actually protect the amendments to the Pakistan Army Act that allowed establishment of such military courts.
The argument whether the Constitution does have a basic structure or not has finally been settled.
Among the 13 who agreed that the parliament’s power to amend the Constitution was subject to judicial review, there was disagreement as to whether the 21st Amendment actually violated any of the salient features of the Constitution. Five of them — with Justice Jawwad Khawaja at their helm — agreed that the 21st Amendment violated the independence of the judiciary which was a salient feature of the Constitution. On the other hand, a plurality of eight judges held that the 21st Amendment did not violate any of the salient features of the Constitution.
The plurality judgement authored by Justice Azmat Saeed holds that the establishment of military courts was protected by the 21st Amendment and that the said amendment did not offend against any of the salient features of the Constitution (most significantly, the independence of the judiciary) on account of the following facts and conditions. Firstly, the amendment was temporary and was introduced while the nation was facing an internal war and would automatically lapse after two years. Secondly, only a very narrow sliver of civilians would be triable under military courts — namely those accused of religious/sectarian terrorism. Thirdly, the reference of cases to the military courts would continue to remain subject to judicial scrutiny. Fourthly, the military courts would be bound to provide the accused with a fair trial and adequate procedural safeguards in accordance with commonly accepted principles of criminal justice and to pass just and reasoned orders. Fifthly, any order or sentence passed by the military courts would continue to remain judicially reviewable by the high courts and the SC.
The end result is as follows. For the time being, military courts are here to stay. However, if their time period is extended, or their scope expanded, it is likely that the SC shall step in. The reference of any case to the military court shall be subject to judicial scrutiny. Military courts shall adopt the basic principles and procedures of a fair trial and shall pass reasoned orders. Their orders and sentences shall be reviewable by the superior courts. Future constitutional amendments shall remain subject to judicial review and will be examined on a case-by-case basis to assess whether they offend against any salient feature of the Constitution.
The plurality judgement joined by eight judges is, very clearly, a compromise. Ideological purists who cannot accept any dilution of civilian supremacy will prefer the judgements of Justices Jawwad Khawaja and Qazi Faez Isa. On the other end, forensic logicians — for whom the constitutional ouster clause purporting to bar judicial scrutiny of constitutional amendments is an insurmountable obstacle — will surely hail the scathing critique of Justice Saqib Nisar. The plurality judgement treads a middle path — one of pragmatism. Is that necessarily a bad thing?
The famous American judge, Oliver Wendell Holmes, said, “the life of the law has not been logic, it has been experience…” The plurality judgement allows the SC to avoid direct conflict with the army, the government and a unanimous parliament. Simultaneously, it ensures that military courts shall operate within the commonly accepted parameters for a fair trial and their orders shall remain subject to judicial review of the high courts and SC. In other words, their legal position will not be radically different from that of a customs or tax tribunal. Finally, by retaining the power to judicially review constitutional amendments, it keeps a vigilant eye out towards the future. Indeed, the plurality judgement explicitly addresses the fear that military courts shall keep on enhancing their jurisdiction — by observing that “trials of civilians by court martial are an exception and can never be the rule. Amplification of the jurisdiction of the forums under the Pakistan Army Act … may step out of the bounds of constitutionality”. It further observes: “A quantitative change can always result in a qualitative change bringing the matter within the prohibition of the implied restriction upon the power to amend…”
Justice Saqib Nisar, in his opinion, admiringly cites the US Supreme Court judgement in Marbury v Madison which adroitly mixed judicial innovation with judicial pragmatism and is described as “an act of high judicial statesmanship”. In years to come, will the present SC judgement be similarly described?
The writer is a barrister practicing in Karachi.
Published in Dawn, August 10th, 2015
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