The conundrum of the 18th and 21st Amendment cases

Saad Rasool has written this insightful column for The Nation on the pending Supreme Court of Pakistan cases testing the validity of the 18th and 21st Amendments to the Constitution. He observes that the

[s]um total of these amendments mean that military trials of (select) religious terrorists can now take place under the Army Act, outside the gates of fundamental rights, by serving Army officers, who cannot be challenged on the basis of the constitutional principle of due process or ‘separation of powers’. As a result, the constitutional and legal paradigm of Pakistan has created three different forums for adjudication of somewhat similar (identical?) offences: 1) Sessions Courts, for the trial of (regular) murder and connected offences; 2) the Anti-Terrorist Courts, for trial for all terrorism offences, unconnected with religion; and 3) Military Courts, for trying terrorist suspects who use “the name of religion or a sect”.

Surprisingly, the (absolute) discretion, as to which cases will be referred to the military courts, has been left in the (partisan) hands of Federal Government. Also, for now, there is no clarity or transparent procedure for how such determinations might be made. In fact, the entire exercise of such unfettered discretion of the Federal Government, to arbitrarily pick between different forums of adjudication, offends the cardinal principles of equality before law, and thus flies in the face of established principles of our jurisprudence, including the landmark case of Waris Meah (PLD 1957 SC 157).

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[T]he existence of military courts, and their constitutional protection, necessarily undermines the legitimacy of our judicial process. It does far greater damage to the independence of judiciary than Article 175A ever could! How then can such an aberration be tolerated by a judiciary that claims to have “buried forever” the doctrine of necessity? Is it is not “necessity”, above all other arguments, that rests at the core of enacting military courts? And if we allow “necessity” to be a legitimate constitutional excuse today, can we really expect to not use it as a defense again, tomorrow, when some military adventurer decides to depose democracy?

On the other hand, is there any justification for the Court, which is a creature of the Constitution, to invalidate provisions of the very document that creates it? In other words, can the makhlooq invalidate part of the khaliq? And on what basis? How can we decipher, and then apply, an unwritten ‘Basic Structure’? Can the ‘Objectives Resolution’ be used as a touchstone for this exercise? If so, will we not then forever enshrined Islamic ideology (as interpreted by Mullahs) to be an unimpeachable part of our Constitution? What consequences would this have on Fundamental Rights? On minority rights? On laws of criminal procedure and evidence? On our daily lives, and that of our children, and their children after that? 

These are tough questions for honourable Judges. And the answer entails a constitutional soul-searching exercise to determine not only who are as a people, but also who we wish to become as a nation.