A new judicial veto

Legal eye
The primary question before the Supreme Court in the 18th and 21st amendment petitions was not whether military courts are good or bad, but whether the court has the authority to sit in judgement over constitutional changes introduced by parliament with two-thirds majority.
The SC was thus required to determine if Article 239 (ie (5) “no amendment of the Constitution shall be called in question in any court on any ground whatsoever”; and (6) “for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Parliament to amend any of the provisions of the Constitution”) left room for judicial review of constitutional amendments.
“The basic structure doctrine has itself…ended in becoming (and this was easily foreseeable) a vehicle of judicial aggrandizement of power at the expense of elected representatives of the people. On the conceptual plane, it is devoid of merit and amounts to little more than a vessel into which judges can pour whatever economic, political or social theory as may catch their fancy or whim at any given time.”
This succinct critique of the basic structure theory, reflecting fidelity to limitations imposed by the explicit text of the constitution on the power of judges, is unfortunately not part of the SC’s majority opinion.
These are the words of Justice Saqib Nisar who along with Justices Nasirul Mulk, Asif Khosa and Iqbal Hameedur Rehman, has opposed the opinion of 13 judges appropriating for the SC, for the first time in our judicial history, the power to strike down constitutional amendments on the basis of the basic structure doctrine ie that that constitution has certain basic features (not mentioned in the constitution itself and not exhaustively stated by judges in this judgement either) that can never be changed by parliament even with a unanimous vote.
Thus 13 judges have held that there are unstated limitations on parliament’s power to amend the constitution and it is the court that will decide as and when an amendment is passed whether such amendment contravenes one of the salient features comprising the basic structure of the constitution. What this means is that the court has circumscribed parliament’s legislative authority, every constitutional amendment will be challenged and the fate of the amendment will hang on subjective opinions of judges comprising the apex court at the relevant time.
A consequence of the SC judgement is that military courts are here to stay. Eight judges out of the 13 who believe the SC can rule on the legality of constitutional amendments have held that military courts are kosher and do not offend the salient features of the constitution, including separation of powers and independence of the judiciary. Three out of the four who believe that the court has no authority or business sitting in judgement over constitutional amendments have held that they don’t have jurisdiction to rule over military courts. This then produces 11 votes against striking down military courts.
Five out of the 13 judges who endorse the basic structure doctrine have held that the 21st Amendment (and military courts protected thereunder) contravenes salient features of the constitution, amounts to parliament transgressing its authority and cannot therefore be countenanced. Justice Khosa, while opposed to basic structure, has interpreted the constitution and delved into the timing of passage of amendments to the Army Act and the constitution to conclude that military courts are not protected by the 21st Amendment. As this add up to only six votes out of 17, the military courts stay alive.
Justice Azmat Saeed has authored the plurality judgement supported by eight judges who endorse the basic structure doctrine while dismissing challenges to the 18th and 21st amendments. This judgement also concludes that the decision of the executive to send cases to military courts as well as proceedings/decisions of military courts will be amenable to judicial review to the extent that they suffer from lack of jurisdiction, coram non judice or mala fides (this is a reiteration of the settled judicial test for disregarding ouster clauses such as the one in the Army Act excluding jurisdiction of civilian courts).
The judgement authored by Chief Justice Nasirul Mulk and supported by Justice Iqbal Hameedur Rehman, while rejecting the basic structure doctrine, clarifies that exercise of power to refer cases to military courts and decisions/sentences passed by such courts are subject to judicial review. Consequently, a majority of 10 judges have explicitly held that who gets sent before military courts and sentences passed by them can be challenged in writ jurisdiction on one of three limited grounds. (This, however, is not new law and our courts have historically been loath to interfere with court martial proceedings or outcomes).
The judgement is the worst of both worlds: it grants unelected judges a veto over choices made by the people of Pakistan through their elected representatives regarding the content of the fundamental law that forms the contract between them and their state; and it debases the doctrine of separation of powers and grants formal judicial endorsement to the retrograde view that fundamental rights of citizens are not inalienable and can be suspended in face of security challenges and due process protections and being tried by an independent judiciary are luxuries those accused (not convicted) of terror don’t deserve.
In the 900-page judgement and candidly articulated diverse opinions we see the reflection of a court struggling to reconcile conflicting views over preferred moral and legal responses to the vexing problem of terror, just like the rest of us. What is unfortunate is that a majority of judges in our highest court (which is designed to be immune from transient sentiments of the day) seem to grant fundamental rights of citizens a subsidiary status in our constitutional scheme. This approach to the inalienable rights of citizens recognised in all civilised societies will remain a stain on our jurisprudence till it is cleaned up by a future SC.
It would have been a different matter if the court had decided through a majority that notwithstanding the wisdom of the 21st Amendment and parliament’s decision to place the right of an accused to due process and fair trial at the mercy of architects and enforcers of our national security policy, the apex court is only empowered by the constitution to interpret law and not make it and thus it remains for the people of Pakistan and history to judge whether inscribing military courts within our constitutional scheme is a good idea or bad.
But here we find a court that leaps at the opportunity to ‘aggrandise’ its own power ‘at the expense of elected representatives of the people’ with not the slightest sense of irony or hint of awareness that public acceptance and support for military courts is rooted in the narrative that our criminal justice system, overseen by the judiciary, is failing this country and its people. That military courts are seen as necessary evil and acceptable (not just for our Wild West but also for urban violence) because ‘due process’ and ‘fair trials’ before ordinary courts have come to be regarded as a sanctuary for terrorists.
The eight-member plurality judgement that has carried the day reflects a pragmatic mindset and decision of the judges to go with the flow for now, but arm themselves with the tools to fight another day. The army should be happy because it got its military courts. The government should be happy because its amendments weren’t struck down. And the judges should be happy because they now have a veto over constitutional amendments. But also because with khakis exercising judicial powers and crowds cheering instant executions no one will focus on the failings of our criminal justice system for a while at least.
The writer is a lawyer based in Islamabad.
Email: sattar@post.harvard.edu