SC ver­dict & af­ter

The Pak Banker - - 4EDITORIAL -

LAST week a full bench of the Supreme Court, presided over by the chief jus­tice, up­held the 21st Amend­ment un­der which mil­i­tary courts were set up till Fe­bru­ary 2017 to try ter­ror­ists and mil­i­tants. The de­ci­sion taken by Par­lia­ment to amend the Con­sti­tu­tion and es­tab­lish mil­i­tary courts came in the wake of a ter­ror­ist at­tack on the Army Public School in Peshawar which left around 150 peo­ple dead, most of them chil­dren. The apex court ob­served in its ver­dict that the Con­sti­tu­tional Amend­ments ap­proved by Par­lia­ment could not be struck down. How­ever, the most se­nior judge of the apex court, Jus­tice Jawwad S Khawaja, in his 25-page dis­sent­ing note de­clared that the 21st Amend­ment was vi­ola­tive of the let­ter and spirit of the Con­sti­tu­tion.

The apex court's 11-6 ver­dict de­liv­ered in favour of mil­i­tary courts shows that the bench was di­vided in their opin­ion. A dis­sent­ing, mi­nor­ity judg­ment by six judges of the Supreme Court against the ma­jor­ity judg­ment of 11 judges de­clared the 21st Amend­ment as well as tri­als of the ac­cused by mil­i­tary courts as illegal and un­con­sti­tu­tional. The is­sue at stake was es­sen­tially whether the Con­sti­tu­tion has a struc­ture, whether this struc­ture could be changed, and if so whether the struc­ture could be changed through amend­ments and whether Par­lia­ment has the right to make such amend­ments. The SC ver­dict has ex­posed the wide di­ver­gence of views that ex­ist on the is­sue in the coun­try's le­gal com­mu­nity.

On one side of the fence is the lobby which be­lieves that mil­i­tary courts by set­tling cases quickly can help fight ter­ror­ism more ef­fec­tively. PM Nawaz Sharif has de­scribed the SC ver­dict as a tes­ti­mony to the supremacy of the Con­sti­tu­tion and Par­lia­ment. On the other hand, there is the lawyers and ju­rists lobby which feels that the judg­ments de­liv­ered by men in uni­form can never be just and fair as proper ju­di­cial pro­ce­dure is un­likely to be fol­lowed. There is also the ques­tion of what role the Con­sti­tu­tion lays down for var­i­ous in­sti­tu­tions and whether the lines drawn by it can be crossed.

In his dis­sent­ing note, Jus­tice Jawwad S. Khawaja has held that the 21st Amend­ment is not valid since Par­lia­ment is not a sov­er­eign or supreme body in the sense that there are lim­i­ta­tions on its power to amend the Con­sti­tu­tion. Ac­cord­ing to him, the lim­i­ta­tions on Par­lia­ment are not only po­lit­i­cal but also ju­ridi­cal, and the Supreme Court has the power to re­view a con­sti­tu­tional amend­ment passed by Par­lia­ment and to strike it down where ap­pro­pri­ate. Jus­tice Jawwad Kh­waja has pointed out that Pak­istan's le­gal and con­sti­tu­tional history has am­ply demon­strated that laws can be made by Par­lia­ment which does not nec­es­sar­ily rep­re­sent the as­pi­ra­tions of the peo­ple or serve the larger na­tional in­ter­ests.

Although the SC ver­dict has be­come op­er­a­tive, there are many ques­tions that still re­main unan­swered. For ex­am­ple, fol­low­ing the latest SC de­ci­sion, will the su­pe­rior ju­di­ciary show a height­ened aware­ness of the need to un­der­take the long de­layed crim­i­nal jus­tice re­forms? Sim­i­larly, will the su­pe­rior ju­di­ciary push the ad­min­is­tra­tive re­forms to set things right at the level of the lower courts where the com­mon lit­i­gants face un­speak­able hard­ships in search of jus­tice? All said and done, the coun­try is now sad­dled with a par­al­lel ju­di­cial sys­tem un­til the sunset clause in the 21st Amend­ment ex­pires in 2016. To en­sure that the life of mil­i­tary courts is not ex­tended be­yond this date, it is im­por­tant that the crim­i­nal jus­tice sys­tem is re­formed on an ur­gent ba­sis. Mil­i­tary courts are at best a tem­po­rary pal­lia­tive. For, by them­selves they can­not change the se­cu­rity sit­u­a­tion on the ground, un­less the gov­ern­ment takes proac­tive steps to smash the ter­ror­ist net­works pos­ing an ex­is­ten­tial threat to the coun­try.

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