Insights into Pakistan's Military Courts Case

From this insightful op-ed by Asma Jahangir in The Statesman:

The judgement shows lack of consensus in Pakistan about some basic issues. The disagreements and opposing trends seen in the 10 legal opinions, delivered by a full court of 17 judges, reflect confusion. Some opinions retain a rigid, retrogressive approach to democracy and political progress; others are open to change. This also represents the national picture. Those craving to move forward are constantly pulled back. 

Most importantly, the judgement was a reminder of the several compromises that have been made by Pakistan’s judiciary over the years. At many times, this has been at the expense of promoting democracy and the rule of law. 

The SC had consistently held it could not sit on judgement on constitutional amendments passed by military dictators or parliament as the law-giver. Often, it was tempted to follow the Supreme Court of India to arrogate to itself the role of defining the basic structure of the Constitution and retain the power to review constitutional amendments, but so far it had resisted. Those challenging the 21st Amendment unanimously opposed military courts trying civilians, but remained divided on granting the SC the power to identify a basic structure of the Constitution that could never be touched.

The judgement follows three distinct constitutional paths. A small minority ruled that parliament did not have absolute power to amend the Constitution which was subject to a basic structure for the courts to define and struck down the jurisdiction of military courts to try civilians. The judges showed little confidence in politicians, believing they could undermine/remove the Constitution’s salient features. As against the Ten Commandments, a judge identified nine ‘commands’ in the Constitution, which according to him could never be touched by any parliament. He ruled that the faith expressed in the capacity of the political process for self-correction which obviates the need for judicial review must be discarded. Five judges warned against adopting the basic structure theory, which they feared would leave Pakistan’s judiciary politicised and despotic. They pointed out the dichotomy of subjecting unanimously passed amendments to the Constitution by elected representatives to judicial scrutiny, while in the past the same courts had legitimised several amendments imposed by various dictators. They observed that courts were specifically barred from examining constitutional amendments on any grounds. Sadly, some have observed that the judgement reflects the thinking that democracy should be controlled by judges, even if Pakistan’s judiciary has historically been perceived as endorsing military rule. 

Judges, a judge said, were expected to be wise but not wiser than the entire society. Two of the five also ruled that the amended military laws offended basic rights and were therefore unconstitutional. 

A majority ruled that parliament’s power to amend the Constitution was not absolute. It could not alter the Constitution’s salient features and that military trials in extraordinary situations were acceptable. The judgement is perceived by some as undermining an elected parliament and widening the Supreme Court’s power base. By ruling that establishing military courts during armed conflict survives the salient-feature threshold, the doors have been opened for the executive to subvert due process and put fundamental rights at the mercy of ‘security needs’.