Who is more sovereign: the parliament or the judiciary?

Extreme views

The national assembly and the senate of Pakistan passed the 21^st constitutional amendment on January 6, 2015, after which the Army Act was amended to give more powers to the military to deal with terrorists. It also led to the formation of military courts to award punishments to members of banned militant outfits following the Peshawar carnage in December last year, in which more than 141 people lost their lives including 132 children.

The bill allows for military courts, under a military officer, to preside over terror-related cases for two years.

But since the passage of the 21^st constitutional amendment the judiciary is not happy on the formation of military courts. Hearing a petition against the 18^th and 21^st constitutional amendment on June 23^rd, Justice Asif Saeed Khosa said, “Bringing certain matters under the military courts as administrative arrangements during a democratic era is also dictatorship”.

“How can we allow it? There was no need of the 21st amendment after the military leadership directed the federal government to make an amendment for formation of military courts. What was the need for the amendment in the Army Act in the presence of Article 245? It is said in the preface of 21st amendment that it is aimed at providing constitutional protection to military courts.”

Justice Dost Muhammad Khan remarked, “The successful operation conducted in Swat was conducted under Article 245, not under military courts. If the situation can improve in Swat, why not elsewhere? What is the need for formation of military courts?”

If the government can call in army under Article 245 for fear of revolt, it could be done so now too. There was no need for formation of military courts. Signing by the president prior to approval of parliament is as if any accused is hanged without trial, Justice Jawwad S Khawaja remarked.

Despite the concerns of the judges of the supreme court of Pakistan, it is without a shred of doubt that civilian courts of Pakistan had failed to punish the terrorists and members of banned sectarian outfits of the country.

Lawyer Haider Raza told DNA that military courts were formed when the civilian courts of the country completely failed to punish the criminals.

“We have seen in the past how the civilian courts released Malik Ishaq, head of Lashkar-e-Jhangvi (which is regarded as the most dangerous terrorist group in Pakistan, having killed hundreds of Shi’a since the early 1990s), following threats judges received from these terrorists,” he added.

‘If the government can call in army under Article 245 for fear of revolt, it could be done so now too. There was no need for formation of military courts’

It also raises the question that is the judiciary aware of the impact of letting such terrorists loose on society? Despite threats to judges, is there not even one judge ready to stand against them and, if so, is this not a reflection of their commitment to their job, justice and social good? What makes such judges qualified to continue to sit on their seats of office?

Answering the question, Advocate High Court Ali Ibrahim told DNA that the judiciary has a constitutional mandate which it cannot transgress. Furthermore, the judiciary does not make laws (properly so called) or rules of evidence. Judicial power extends only to interpretation of rules and laws and their application. Judges cannot, and should not; convict people where the state has failed to meet its burden of proof.

“In such cases judges can’t be asked to convict on the basis of how they feel or what vibes they get from the accused,” he said, adding that in his humble view the problem lay in prosecutorial conduct including collection of evidence by the police, and the fact that people aren’t willing to come forward and help,” said Ibrahim.

“With regard to whether the judiciary is aware of the impact of terrorists on society, I’m sure judges must know in their individual capacity but the judiciary, as an institution, is not required to care”.

Agreeing with Ibrahim, constitutional expert and advocate Supreme Court of Pakistan Tafazzul Hussain Rizvi told DNA that judges dispense justice under the law and if the cases brought to court have faulty investigation and forensics, they have no option but to give the judgment in favour of accused. There is an urgent and emergent need to change the criminal procedural and evidence laws so judges may sentence the accused on the basis of latest technology.

“No witnesses come forward to testify against terrorists. Our laws should be amended so that evidence collected through use of technology is enough for conviction,” said Rizvi.

Barrister Taimoor Mateen Khan opined that he personally shall not doubt the commitment of any of the judges in relation to their jobs, however, the question is that in the wake of an extremely weak prosecution system, frail evidence collection on part of the police, and consequently the advanced modus operandi of the terrorists/attackers, is it safe, even being mindful of the legal norms/facets, for a judge to hold anyone liable or to convict anyone?

“The solution is to cultivate a culture that ensures the anonymity of the judges and their families, especially judges who deal with such cases or those serving in the Anti-Terrorist Courts. If this can be ensured change may come overnight and our judges may pass brave decisions,” said Khan, adding that the way our judges are trained and the legal culture that prevails no one, even in the realm of most influential people in the legal fraternity, is prepared to think on the lines of the impact their decisions may have. Legal training and education is another factor that may improve quality of decisions, he added.

However, advocate Abdul Quddus was of the opinion that it is not the fault of the judiciary or any single judge for that matter. The courts have to follow the paper trail. Investigating agencies lack capabilities. The material evidence presented in courts is insufficient to convict as per the standards of law.

“In my opinion judges have been working very hard to deliver. Every single judge is pressed by a lot of work. The judiciary is stretched really thin”, he added.

Political Economist Mobeen Chughtai asked DNA if it is a big secret that the judicial system of Pakistan has failed and continues to fail society on multiple levels?

Chughtai added that he has a much respect for the theory behind the judicial system. But just as a man who becomes part of the police, tasked with enforcing the law, has to be held accountable for not arresting criminals based on corruption or fear — the man who sits on the high seat of dispensing justice has to be held accountable for not doing so because of the same reasons. The high seat of justice is beyond reproach — but the man who sits on it isn’t. And the respected courts have to understand the distinction between what constitutes contempt of court and contempt of a failure of a man installed in that position.

Are military courts an infringement on the courts’ domain?

“Army courts are an indictment of the judiciary and under our constitution cannot be permitted to try civilians,” said Rizvi.

However, Barrister Khan thinks otherwise, “Infringement? This is something that is perpetual in the cultures where the concept of separation of powers undermines the constitutional principles of a state. Of course the army court is an infringement and does portray a massive challenge to our legal system. However, it’s the same challenge that shall, in my opinion, would force the judges to find a way out of this conundrum.

Unfortunately, under the present circumstances I do support military courts, and shall support till the time the government ensures that the anonymity of judges dealing with terrorist cases is maintained at all costs.”

Agreeing with Rizvi, Ibrahim said army courts are a clear infringement on courts that supervise justice delivery throughout the country. These military courts can hardly be said to be adversarial and they do not comply with most requirements with regard to the right to fair trial and due process enshrined in Article 10-A of the constitution.

However, since they have come about as a result of a constitutional amendment and case law in Pakistan does not support the view that our constitution has any basic structure that cannot be tampered except for it being an Islamic Republic, they are legal, said Ibrahim.

‘No witnesses come forward to testify against terrorists. Our laws should be amended so that evidence collected through use of technology is enough for conviction’

Who is more sovereign?

Political Analyst Anjum Rasheed told DNA that people of Pakistan are sovereign and members of parliament represent them and courts are below them. “But the duration of the military courts established to deal with terrorists must not exceed two years.”

Military courts were formed because the civilian government completely failed to deal with terrorists.

Ibrahim added that under the Constitution people have the highest power reposed in them by Allah. In a democratic system these people are represented by parliament, which is supreme. It can even overrule a judgment of the SC by making a law.

But then again in a constitutional system, no institution has unfettered powers. Their powers and relations are governed and regulated by the constitution, he said.

However, parliament can even amend the constitution so there is no doubt that parliament is supreme, Ibrahim said.

Advocate Quddus also told DNA that parliament is sovereign and supreme. It can pass any law. It is neither bound by predecessor nor successor. Parliamentary sovereignty is an essential feature of a democratic state.

Barrister Khan said that coming back to the separation of powers, in most societies parliament, although at par with the other two institutions, is considered first among equals, this is what justifies the formation and establishment of such courts.

The assurance that is required is that its abuse have to be checked by the courts rather than the courts be disheartened that their specific powers are being shared. There must be proper checks on the actions or the procedures adopted by the military courts.

“A single judge Mr Justice XYZ from the judiciary might share the bench with Brig Mr Justice ABC! This may sound awkward but will surely act as a testament to ensure civil rights guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 and the subsequent amendments” said Khan.