Survival and existence come first
Ever since the passage of the 21st Constitutional Amendment by the Parliament to provide for the establishment of military courts to deal with cases related to terrorism and giving them constitutional cover, a controversy has been raging about the rationale for their establishment from the legal and constitutional perspective. It has even been challenged in the Supreme Court contending that the Parliament could not alter the basic structure of the Constitution. An honourable judge of the SC Sarmad Jalal Osmani during the hearing of a case remarked “there is no need to set up military courts” and asked if the judges of the military courts would be more competent, dutiful and intelligent than those of the apex court and would be able to address all the problems.
Justice Jawad S Khawaja probably felt incensed by the remarks of the Prime Minister regarding pendency of cases in the judiciary and said “The government, not the Court, was responsible for the pending cases. The government after declaring itself inefficient puts all the blame on the courts.” These remarks, even before taking up the petition challenging the 21st Amendment, adequately reflect the prevailing perception among the judges of the apex court in regards to the amendment and the setting up of military courts as well as an indication about the likely outcome of the case. And if the SC grants the prayer of the petitioner, it would be quite upsetting and embarrassing for the government and the military establishment besides dealing a big blow to the fight against terrorism.
Many analysts and constitutional experts view this development as a manifestation of the turf war between Judiciary and the combination of the Executive and the Parliament. The permeating feeling is that the judiciary, like in the case of the clause of the 18th amendment dealing with appointment of judges, would not hesitate to challenge the 21st amendment. The question one is tempted to ask in the prevailing scenario is, whether the judiciary is competent to challenge a constitutional amendment effected by the Parliament and what the status of the Parliament is viz-a-viz other state institutions. For that perhaps a reference to the Constitution itself would be advisable.
The Constitution acknowledging the sovereignty of God over the entire universe recognises the people of Pakistan as sovereign within the State of Pakistan in conformity with the limits prescribed by Him and their right to exercise this sovereignty through their chosen representatives, which is the Parliament. The Constitution itself is the creation of the Parliament. In that respect, Parliament is the mother of all state institutions that it has created through the promulgation of the Constitution, which can be amended by none other than the Parliament itself. That amendment, according to the Constitution, cannot be challenged in any court of law on any ground. Article 239 (5-6) says: “No amendment of the Constitution shall be called in question in any court on any ground whatsoever. For the removal of doubt, it is hereby declared that there is no limitation whatsoever on the power of Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.” This article makes it abundantly clear that no amendment made in the Constitution by the court is challengeable in any court and there is no limit on its powers to make any changes that it deems necessary and expedient.
The judiciary being custodian of the Constitution is therefore bound to respect the Constitution. Challenge the 21st amendment on any ground would tantamount to subverting the will of the people. The setting up of the military courts and giving them constitutional cover through 21st amendment is a necessity-driven and time-specific initiative to deal with existentialist threat to the state, taken on the basis of national consensus on the issue. The Prime Minister and the military leadership have repeatedly explained the rationale for setting up the military courts and bringing the 21st Amendment to the Constitution. The judiciary as an institution of the state is under obligation to play its role in warding off the dangers to the existence of the state and therefore must not construe the measure as a challenge to its status. The entire nation is unanimous on eliminating the scourge of terrorism at all costs. The county is in a situation of war against a very treacherous and invisible enemy and quelling the threat posed by it certainly requires extraordinary measures. Survival and existence come first.
Unfortunately, the public perception about the judiciary under the existing system and as per its record is not very enviable. There was a general consensus that the present judicial system was not capable of dispensing quick justice in regards to acts of terrorism in view of the urgency involved and therefore an alternate short-term measure was absolutely essential. The move by the government was dictated by the circumstances. Our courts have been validating martial laws and the pummeling of the fundamental rights by the dictatorial regimes under the Doctrine of Necessity, though those acts violated the Constitution. This conformist consensus by the judiciary clearly suggested that breach of the Constitution was in the best interest of the country and its people. That Doctrine was never needed more than it is now when the country is about to burst at its seams.
The SC employing the ‘basic structure theory’ after the 18th amendment tried to protect its institutional turf and overlord the Parliament by challenging the clause regarding appointment of the judges of the apex court, which was also against the internationally recognised principle of jurisprudence that one could not act as a judge in his own case. And if the SC now tries to challenge or strike down the 21st amendment, that notion would be further reinforced. The Supreme Court would be better advised to resist the temptation of striking down the 21st amendment or interpret the Constitution in a way that undermines the powers and right of the Parliament to amend the Constitution. There is no dearth of the constitutional experts who are of the view that our judiciary after its restoration has been acting more as a populist court than as a court of law, as reflected in its decisions that catered more to the public sentiment rather than the sanctity of the Constitution. Under the circumstances invoking the basic structure theory would be a grave mistake. By doing so, the judiciary would not only be violating Article 239 of the Constitution and jurisprudential principles but would also find itself on the wrong side of the public opinion.