SC verdict & after
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.