Constitutiona Conundrum

Full court of the Supreme Court of Pakistan, on Friday, concluded hearing and reserved its judgment on the challenges to the 18th and the 21st Constitutional Amendment. While the substance of both these Amendments is very different in essence, the pending challenges invite the court to deliberate upon, inter alia, the core issue of whether or not a constitutional (Supreme) Court can sit in judgment over provisions of the Constitution itself. Furthermore, the august Court is faced with the seemingly insurmountable constitutional questions concerning defection clauses (introduced through the 18th Amendment) and deciding on the legitimacy of military courts (per the 21st Amendment).

But before delving into some of the constitutional complexities facing the honourable Supreme Court, it is pertinent to revisit the substantive aspects of the impugned Constitutional Amendments, in order to understand the legal and political issues at stake.

The 18th Constitutional Amendment, enacted in 2010 by a civilian democratic government, in the aftermath of a decade-long military rule, enacted several tectonic changes into the Constitutional topography of Pakistan. Some of these changes, such as the constitutional command for local governments (Article 140A) was widely hailed and accepted. Others, however, were more controversial in nature. In particular, faced with the euphoric belligerence of the Chaudhry Court, especially after the judgment in Sindh High Court Bar Association case, which removed over 100 (PCO) judges, the parliamentarians (unanimously) decided to amend the process of judicial appointments (through introduction of Article 175A), in an attempt to break pater familias’ hegemony over judicial appointments, making the process more inclusive (and democratic) in nature. Furthermore, Article 63A (an anti-defection clause) was included into the Constitution, giving “Party Head” the power to recommend the disqualification of any member of the Parliamentary Party, in case such member resigns from the Party, or deviates from party line in matters concerning the election of PM/CM, voting of no-confidence motions, or the passing of a Money Bill and Constitutional Amendments.

At the time, despite the draconian implications of Article 63A, which wreck the very core of our democracy, a challenge to the 18th Amendment focused almost exclusively on the judicial appointment process (Article 175A). In what seemed like a turf-war between the Parliament and the honourable Court, in October of 2010, the honourable Supreme Court delivered a short-order that stopped just shy of declaring that Article 175A offended an unwritten (unascertainable?) Basic Structure of Pakistan’s Constitution; one that even a unanimous Parliament could not amend or tinker with.

Soon thereafter, as a sort of constitutional compromise, the Parliament enacted the 19th Constitutional Amendment, which increased representation of judges in the Judicial Commission, confirming their dominance over the appointment process. In the months to follow, the constitutional autonomy of Parliamentary Committee and the President, in the process of judicial appointments, was also cut to size through Munir Hussain Bhatti’s case (PLD 2011 SC 407) and the Presidential Reference No. 1 of 2012, in essence undoing the entire paradigm of judicial appointments that was conceived by the 18th Amendment.

The issue of Article 63A, which finds no mention – at all! – in the short-order of 18th Amendment case, lingered on, with no real urgency on part of either the polity or judiciary. Along comes the 21st Constitutional Amendment, in the wake of the unprecedented tragedy in APS Peshawar, last December. This Amendment package was designed to achieve two objectives: 1) trying religious terrorists in the military courts (through amendment of section 2 of the Army Act, which now extends jurisdiction to terrorists waging war “using the name of religion or a sect”), and 2) lending constitutional protection to the establishment and proceedings of the military courts (through exempting military laws from the protection of Article 8 of the Constitution (Fundamental Rights), and exempting such proceedings from the bar of Article 175(3) (separation of powers)).

Sum 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).

Judges of the apex Court find themselves in an unenviable place. Deciding these questions require the making of tough, almost impossible, constitutional choices. In regards to Article 63A – despite our political history of shady deals and forward blocks – there can be very little constitutional cavil with the idea that each MP, regardless of the political party associations, must be given the autonomy to make independent choices in the Parliament, without binding dictation from the Party Head. In fact, such autonomy of the each parliamentarian must be jealously guarded by the court, as an essential part of our democracy, because this autonomy represents the freedom of each parliamentarian to voice the opinion of his/her constituents – even when such expression differs with the party line. What good would representative democracy or adult franchise be, if curtailed within the binding contours of a select few Party Heads? And if this does not offend the very core of our Constitutional ethos, what does?

Similarly, the 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.

Published on June 28, 2015

The Nation

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