"Dawn" and sunset

Dawn, the influential Pakistani newspaper, has run the following discouraging editorial suggesting that the 21st Amendment, which authorized military courts with power to try civilians for two years, presents a nonjusticiable political question:

THE Supreme Court is grappling with a two-fold question: can a constitutional amendment ever be struck down? And does the 21st Amendment to the Constitution, as a result of which a new regime of military courts has been established, meet the criteria for an amendment to be struck down in part or in full? 

The sheer magnitude of what was done in January by parliament has thus once again come into focus.

Effectively, parliament created an exception to the existence of fundamental rights in cases to be tried under the new military courts regime.

It has taken away the right of the superior judiciary to enforce fundamental rights in those specific cases. It is a clear abomination, one justified in the name of expediency because the terror threat had reached a magnitude that threatened to engulf state and society.

But there is a prior problem for the court here: nothing in the Constitution suggests that the Supreme Court has the power to strike down an amendment passed by parliament. To find that power now, one would have to go against the grain of several past judgments and wade into the speculative realm of a basic structure of the Constitution. 

Not every problem ought to have a judicial solution. There is a category of issues that are political questions. Perhaps the military courts regime falls into the latter category — an abomination though they may be, if the superior judiciary finds for itself a supra-parliamentary role, how might that be used by the Supreme Court in future cases, when amendments to the Constitution are not clear-cut violations of fundamental rights?

There is danger in finding powers where none were known to exist before. Parliament is an elected body and the people can express their displeasure with something their elected representatives have done by either unseating them at the next election or mobilising to put pressure on parliament to consider rectifying the original problem. 

In this case, the original problem is a decrepit criminal justice system and the need for urgent reform. 

Reform is a combination of legislative and executive action. But has parliament demonstrated even the slightest interest in getting the government to focus on criminal justice reform?

It appears that after caving in to pressure from the military to establish the new regime of military courts to try so-called jet-black terrorists, parliament and the government are content with the sunset clause in the 21st Amendment, whereby the parallel regime is set to lapse in 2016.

But inaction on the reform front could prove to be reason enough to demand an extension of the black law in 2016.

It hardly seems likely that the country will be cleared of the very worst of terrorists and their leaders in 18 months’ time. If the ordinary criminal justice system is not in shape to deal with the terror threat by then, then what?

The editors seem resigned to hoping that Parliament somehow musters the courage to resist the temptation (read: military pressure) to make the 21st Amendment permanent rather than allowing it to sunset at the end of next year. Unless Parliament takes decisive measures immediately to fix the civilian criminal courts and related processes -- whose shortcomings were the putative basis for the 21st Amendment in the first place -- one can only assume the pressure to keep the military courts in existence past their current "sell by" date would be irresistible.

What is missing from the editorial is any recognition that there is respectable contemporary authority for the notion that a constitutional court like the Supreme Court of Pakistan can hold even a constitutional amendment unconstitutional. Has anyone at Dawn actually studied the case law and scholarly literature in this regard? One would hope so, but you would never know it from this editorial. Dawn should commission an op-ed on the subject by some broadly respected Pakistani scholar -- perhaps a retired jurist -- who can do justice to the issue. It would also serve its readers interests by reproducing some of the arguments actually being made to the Supreme Court on this score, rather than snippets plucked from courtroom colloquies.

The Supreme Court resumes hearings on the constitutional petitions next week.