A three-path judgement

Published August 31, 2015
The writer is a lawyer and human rights activist.
The writer is a lawyer and human rights activist.

Pakistanis live from crisis to crisis, hardly learning any lessons. They remain in denial of challenges recognised only after enormous suffering. Reluctantly, they seek solutions but select those that spawn more problems.

For many years, Pakistan’s security apparatus boa­sted of holding militants loyal to it amongst its strategic assets. After undergoing extreme violence, the rest of the country accepted the ‘assets’ were killers. It took longer to convince the security leadership. It finally dawned on all stakeholders that action had to be taken against scores of terror groups spread across the country. Army operations carried out in response resulted in the de-escalation of violence, but in a manner that weakened the democratic transition.

The fight against terrorism in Pakistan has taken a toll on civil-military ties. To avoid confrontation, the government often gives in to the military’s demands. Parliament too passed a constitutional amendment, temporarily allowing military courts to try civilians linked to terrorism. The amendment was challenged in the Supreme Court by members of civil society. After a much-awaited judgement, the petitions were predictably dismissed. Perhaps it is difficult to imagine any judiciary in Pakistan assuming it can override a powerful military’s desires.


The court’s response to military justice has discouraged those seeking accountability of security agencies.


At the same time, there was an unrealistic expectation that the courts would bend the law to take on the task of taming the security apparatus. Instead, the verdict delivered by the majority of judges appeared to justify the views of those who cautioned against depending on Pakistan’s courts to bolster democracy and human rights.

The judgement shows lack of consensus in Pakistan about some basic issues. The disagreements and oppo­sing trends seen in the 10 legal opinions, delivered by a full court of 17 judges, reflect confusion. Some opinions retain a rigid, retrogressive approach to democracy and political progress; others are open to change. This also represents the national picture. Those craving to move forward are constantly pulled back.

Most importantly, the judgement was a reminder of the several compromises that have been made by Pakistan’s judiciary over the years. At many times, this has been at the expense of promoting democracy and the rule of law.

The SC had consistently held it could not sit on judgement on constitutional amendments passed by military dictators or parliament as the law-giver. Often, it was tempted to follow the Supreme Court of India to arrogate to itself the role of defining the basic structure of the Constitution and retain the power to review constitutional amendments, but so far it had resisted. Those challenging the 21st Amendment unanimously opposed military courts trying civilians, but remained divided on granting the SC the power to identify a basic structure of the Constitution that could never be touched.

The judgement follows three distinct constitutional paths. A small minority ruled that parliament did not have absolute power to amend the Constitution which was subject to a basic structure for the courts to define and struck down the jurisdiction of military courts to try civilians. The judges showed little confidence in politicians, believing they could undermine/remove the Constitution’s salient features. As against the Ten Commandments, a judge identified nine ‘commands’ in the Constitution, which according to him could never be touched by any parliament. He ruled that the faith expressed in the capacity of the political process for self-correction which obviates the need for judicial review must be discarded.

Five judges warned against adopting the basic structure theory, which they feared would leave Pakistan’s judiciary politicised and despotic. They pointed out the dichotomy of subjecting unanimously passed amendments to the Constitution by elected representatives to judicial scrutiny, while in the past the same courts had legitimised several amendments imposed by various dictators. They observed that courts were specifically barred from examining constitutional amendments on any grounds. Sadly, some have observed that the judgement reflects the thinking that democracy should be controlled by judges, even if Pakistan’s judiciary has historically been perceived as endorsing military rule.

Judges, a judge said, were expected to be wise but not wiser than the entire society. Two of the five also ruled that the amended military laws offended basic rights and were therefore unconstitutional.

A majority ruled that parliament’s power to amend the Constitution was not absolute. It could not alter the Constitution’s salient features and that military trials in extraordinary situations were acceptable. The judgement is perceived by some as undermining an elected parliament and widening the Supreme Court’s power base. By ruling that establishing military courts during armed conflict survives the salient-feature threshold, the doors have been opened for the executive to subvert due process and put fundamental rights at the mercy of ‘security needs’.

The army operation has brought down violence and is seen as popular. Terrorism has extracted a heavy price. Tens of thousands have been killed in various terror attacks. Schools and places of worship have been targeted and children massacred. The situation is indeed grim. But grimmer is the fact that democratic institutions are being controlled by the military, and those calling for some level of accountability of the security forces are being silenced on the pretext of security.

CSOs are monitored and their movement is curtailed. A large section of the media is under self-censorship and operates under regular military ‘advice’. The court’s timid response to military justice has discouraged those willing to demand accountability of the security and intelligence services known to abuse their authority. This approach will subdue an already weakened parliament and make every constitutional amendment subject to the review of a Supreme Court not altogether immune to politics.

The solution to ending terrorism does not lie in giving a free hand to security forces without robust civilian oversight or to grant them powers to judge those they themselves apprehend. A judge who did not validate the military courts pointed out that, “A suicidal measure on the part of society to counter suicide bombers may not be the most rational legislative step”. The choices before us, he said, are many: revenge or sanity, distress or patience and emotion or wisdom. For now, it appears that Pakistan has made its choice quite clear. Brute force will be met by brute force alone.

The writer is a lawyer and human rights activist.

Published in Dawn, August 31st, 2015

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