Daily Times Editorial Aug 7, 2015

Military courts A 17-member full court bench of the Supreme Court (SC) has validated by an 11-6 majority the setting up of nine military courts under the provisions of the 21st constitutional amendment and the amendments to the Pakistan Army Act to try civilians charged with terrorism offences. By a 14-3 majority the SC also dismissed petitions challenging the 18th amendment as it relates to the procedure for appointment of judges of the superior judiciary. Chief Justice-designate Justice Jawwad S Khwaja and other judges recorded dissident notes to the majority judgment. The verdict implies that the stay against execution of six militants sentenced to death by the military courts is now vacated, as well as for subsequent death sentences. However, it is not clear how this will play out since the SC has retained the right of judicial review of trials by military courts and the sentences imposed by them, provided evidence of violations of due process and fair trial can be produced in appeals by the accused under Article 199, implying the normal jurisdiction of the High Courts and SC. The majority view, as enunciated in a short order by Chief Justice Nasirul Mulk, holds there is no limitation on the powers of parliament to amend the constitution and such amendments cannot be challenged on any grounds in any court of law. On the contrary, CJ-designate Justice Khwaja has argued that the 21st amendment is liable to be struck down since parliament has limitations on its power to amend the constitution, which flow from the provisions of the constitution itself. The other learned judges have dilated the majority and minority view from different angles, discussing in the process the basic structure theory and the Objectives Resolution, neither of which, in the majority view, provide grounds for annulling constitutional amendments. While retaining the right of judicial review, the majority has upheld the sovereignty of parliament and a virtually untrammelled power to amend the constitution. The verdict has dismayed and disappointed many within the legal fraternity and society generally. It is being viewed (at least on the basis of the short order and without yet having perused the detailed 900-page judgement) as opening the door to a parallel judicial system that does not answer to the demands of fair trial and due process. The SC Bar Association is meeting on August 12 to consider a review petition against the verdict. While Prime Minister Nawaz Sharif on the floor of the house hailed the verdict as a ‘historic’ judgment and one that upholds the supremacy of parliament, the interior ministry is reportedly finalising 43 cases out of the 600 referred to it by the provincial apex committees and the military to add to the 12 cases already underway in the military courts. The prime minister went on to say that reservations shared by all the political parties on the setting up of military courts notwithstanding, they were a bitter pill necessitated by the struggle against terrorism. Extraordinary situations, he argued, require extraordinary steps. While the verdict will strengthen the war on terrorism and demoralise the terrorists, he stressed, all political parties must bend their backs now to strengthen parliament. The description ‘historic’ used by the prime minister for the verdict is valid, but perhaps for reasons other than what he adduced. It is ‘historic’ in the sense of the implied recognition of the failure of the judicial system, including the anti-terrorism judicial structure, to combat criminal and terrorist activities. There has been talk that the sunset clause regarding military courts’ shelf life till 2016 provides a breathing space to fix the failure. However, so far there is no evidence that the government is even contemplating, let alone seized of this huge task. The will of parliament has been upheld by the majority view of the SC verdict, but arguably that ‘will’ as expressed in these amendments, is inherently flawed, opens the door for unforeseen consequences that may entail the consolidation of an increasing tendency in state and society to seek short cut solutions for the terrorist phenomenon over and above the rights of the accused to an adequate defence, violate due process and fair trial provisions of the constitution itself, and may end up paving the way for a totalitarian dispensation. And who, in the light of the failure of the judicial system per se and no sign of the necessary reforms in the next two years, can guarantee that come 2016, voices will not be heard justifying the extension of these draconian provisions?