Judicial proxy?


Whether allowing military courts to run is a good decision remains to be seen




A seventeen-member bench of the honourable Supreme Court of Pakistan, in a 900-page long landmark judgment, dismissed the petitions challenging the 18th and 21st constitutional amendments, thereby providing a legal cover to the military courts which have been created exclusively for the trial of terrorism cases on a ‘fast track’ basis.

Eleven out of seventeen members of the bench came to the conclusion that references to the military courts by the federal government and verdicts of the same are subject to review by the judiciary, and that the dictates of due process are applicable on the military courts, and that they are ‘bound’ to provide the accused (terrorists?), with a fair trial ensuring reasonable procedural safeguards (Sigh. And pigs will fly!).

The rationale behind this judgment appears to be twofold: (1) the 21st constitutional amendment does not violate the “basic structure” or “salient features” of our constitution; and (2) considering the prevalent national security concerns and for the benefit of public at large, it is ‘necessary’ to institute military courts, in order to curb the menace of terrorism.

For those unfamiliar with the legal phraseology, Basic Structure Doctrine (or salient features of the constitution) is an abstract constitutional notion which considers certain principles to be so fundamental in nature that even an elected parliament, despite an undivided vote, cannot change or alter the same, and that judiciary is the sole guardian and determinant of the Basic Structure. However, the august Court denied to endorse the said doctrine and upheld the 21st constitutional amendment.

These ‘salient features’, as opined by honourable Mr Justice Sh Azmat Saaed, ‘are ascertainable from the Constitution, which include Democracy, Parliamentary Form of Government and Independence of Judiciary. Further, the honourable Judge of the Supreme Court concluded that “the 21st constitutional amendment provides a temporary measure for the trial of terrorists accused of offences including waging war against Pakistan” and the same “does not abrogate, repeal, or substantively alter the Salient Features of the Constitution”. However, it remains ambiguous as to how a parallel judicial system — even if it is temporary — does not curtail judiciary’s independence, which forms an integral part of our constitution.

The Supreme Court had categorically held that decisions of the military courts may be reviewed by the superior courts. To this end, it is important to understand the current modus operandi of the military courts: An unnamed and unidentifiable judge issues a death warrant of an unnamed accused, without mentioning the charges against the same, in a blatant violation of our constitution, particularly Article 10A (right to fair trial). However, endorsing the existing military practices and in utter disregard of the Supreme Court’s order, the Senate has passed the Pakistan Army (Amendment) Bill to try terrorism cases in military courts.

As a reminder (though not entirely polite), have we not seen Pakistani generals since 1958, at numerous times, intervene with the functions of the state and influence the executive as well as the legislature by simply relying on the principles of ‘necessity’, which obviously affected the trichotomy of power as envisaged in the constitution? Nonetheless, applying this paradigm to the current situation is complicated. The legislature created a (constitutional) exception for the men in khakhis to act as judges in cases concerning terrorism and the same has now been approved by our superior judiciary.

The critical need of the time, more so after the horrific incident of 16th December, 2014, demands a stricter regime of trial for all militants involved in destabilising the state. With aching hearts and teary eyes, we – a distressed nation — braced the Army to flush out all local and foreign militants from the country. Thus, relying on the principles of necessity, Mr Justice Sarmad Jalal Osmany approved of the establishment of military courts, subject to judicial review. However, it is pertinent to note that the Supreme Court of Pakistan previously in the famous Tikka Iqbal Khan’s case had held that the doctrine of necessity had no application in Pakistan.

Furthermore, Sharaf Faridi Vs Federation of Pakistan and others in the same line of cases have not only disapproved of a parallel judicial system, but have also held that the executive should be separated from the judiciary unless expressly provided by the constitution. In light of the previous judgements, legal minds have very carefully crafted the said constitutional amendment but it remains unresolved as to what the future of Pakistan will be after the military courts regime has lapsed and, God forbid, a new wave of terrorism emerges.

Being pragmatic, it probably is necessary to set up military courts in order to eradicate terrorism from the country. But why is it not necessary for the law enforcement agencies to diligently perform their duties to counter terrorism and at the same time, with due respect, why is it not necessary for our anti-terrorism judges to take bold decisions to eliminate terrorism? Why is it not necessary to make stringent laws or to introduce reformed evidentiary standards for prosecution of terrorism cases? Why is it not so necessary to improve the existing judicial system rather than creating a new one?

Most certainly because the nation has been deeply wronged by the state functionaries and the Army, fortunately or unfortunately, is its last hope.

Nation’s lack of confidence in the judicial process has compelled the parliament to amend the constitution in order to create military courts. I dread the day when the nation’s skepticism forces the government to make way for the Army to run the country.

It can be argued at length whether our constitution has salient features or not, and if there are ‘salient features’ whether establishing military courts is in contradiction of the same. However, it is still premature to comment on military court’s effectiveness or ability to deliver, staying within the ambit of the constitution.

As a part of the legal community and a bereaved nation, I strongly feel that it is time for the honourable judges to regain people’s faith in the judiciary by ameliorating the judicial system. A system which is fair, independent and unswerving in true sense and does not require Army’s assistance to decide terrorism cases.

“Imagine a king who fights his own battles. Wouldn’t that be a sight?”