Petitioners' positions vary in Pakistan military courts case

Dawn has an interesting short interview with Asma Jahangir, a former president of the Pakistan Supreme Court Bar Association, pointing to differences in the positions adopted by that organization and the Lahore High Court Bar Association. The former asserts that the Supreme Court can interpret the 21st Amendment (which authorizes the country's new military courts); the latter claims that the Court can invalidate the measure for contravening the Constitution's basic arrangements. Excerpts:

Q: Can the judiciary determine the salient features or basic structure of a Constitution or is it only the parliament’s purview?

A: When we discuss, in court, the basic structure or salient features of the Constitution, we give appointed judges the power to determine the nature of future constitutions. This is not the job of the courts. It becomes especially problematic, when the Constitution has been amended several times by dictators. For example, Is the Federal Shariat Court introduced by the military regime of Ziaul Haq in 1980 and subsequently protected through the eighth amendment part of the basic structure or not? Similarly, is the clause introduced by Gen Pervez Musharraf making graduation degree a prerequisite for candidates contesting the general elections, in a country where most people are not graduates, also part of the basic structure? If the answer is yes, then the Constitution requires radical changes.

Q: If the Supreme Court rules that only the judiciary can determine the basic structure of the Constitution then what would be the impact?

A: The power and authority of the parliament would be drastically curtailed. There would be a challenge to every constitutional amendment passed by the parliament in future. I understand that in countries such as India and Bangladesh, the judiciary has passed rulings regarding certain salient features of constitutions but this has also drawn a lot of criticism.

The government yesterday filed its 43-page response to the numerous pending Constitutional Petitions. The hearing is being conducted today (February 24). According to this report in Dawn:

Since Chief Justice Nasir-ul-Mulk, who was heading a three-judge bench seized with the matter, is indisposed, Justice Anwar Zaheer Jamali will preside over the court on Tuesday.

In its reply, which many believe was written more in a passionate way than in legal terms, the federal government mainly focused on the petition filed by the Lahore High Court Bar Association (LHCBA). The reply was drafted by Additional Attorney General Mohammad Waqar Rana and submitted on behalf of Attorney General Salman Aslam Butt.

It requested the apex court to dismiss the challenges because they had no merit and for the sake of all those who had sacrificed their lives in the war against terrorism, for the sake of children (who died in the Peshawar school attack) and for the sake of the future of the country. The people have spoken through their elected representatives.

The reply rejected the basic structure theory as propounded by the LHCBA in its petition and explained that courts in Pakistan had not adhered to or followed such doctrine which prevented amendments to the Constitution.

Just as there seems to have been a race by the government to get the military courts up and running before the Supreme Court could act on the 21st Amendment petitions, so too, there has been an unusual show of activity on the part of the (civilian) anti-terrorism courts, as reported here, seemingly with a view to demonstrating that there is no need for military courts.

“If the speed is maintained there will be no case left for the military courts at least in Punjab. And the efficiency will even obviate the justification of the military courts made on the belief that the civilian criminal justice system was too weak to face terrorists,” said a source in the Punjab government dealing with the terrorism cases.

According to the official figures, out of the 70 high-profile terrorism cases, the anti-terrorism courts (ATCs) have convicted the accused in 40 since the establishment of military courts in January this year.

A previous generation of military courts was invalidated by the Supreme Court in 1999.