On January 6, in a state of national grief catalyzed by a strong nudge from the military, the 21st Constitutional Amendment and an amendment to the Army Act were unanimously passed in the Parliament, thus providing legal cover for the military courts. Precipitated by the Army Public School attack in Peshawar, the formation of military courts has emerged as a divisive and controversial subject.
Existing court judgments, specifically Mehram Ali versus the federation (PLD 1998 sc 1445) and the Liaquat Hussain Case (PLD 1999 SC 504) have declared the military courts unconstitutional, as no parallel legal system can be constructed that bypasses the operation of the existing courts.
The formation of the military courts is a tacit acceptance of two key facts. First, that the civil court system in Pakistan is ineffective and inefficient. The data supports this argument. Between 1990 and 2009, there has been a 74% acquittal rate in terrorism related cases, resulting in three out of every four suspects walking free. The average lifespan of a case in the civil courts is approximately 16 years, whereas well over three million (3,000,000) cases are pending in front of the judiciary. Second, the civilian government cannot uphold the tenants of the constitution, supremely the idea of providing security to citizens and access to justice without military facilitation. While the government has constructed a need-of-the-hour narrative, the military’s near pathological detestation of democratic egalitarianism in the past lead many to label this as a soft coup. Analysts also believe that in today’s climate, it would be impossible to stage a proper coup if one can achieve the same results by manipulating the political milieu surreptitiously.
A three-member bench of the Supreme Court, headed by Chief Justice Nasirul Mulk, took up identical petitions against the formation of the military courts on Wednesday, January 28. Seven petitions, including one from the Lahore High Court Bar Council, and another from the Pakistan Bar Council, argue that these steps are unconstitutional, and against the fundamental rights afforded in articles 8, 9, 10 and 25 of the Constitution. After a brief hearing, notices were issued to the four provinces and the federation, and the case was adjourned until February 12.
This step was predicted by Justice Wajihuddin Ahmed, former Supreme Court judge and former Chief Justice of the Sindh High Court. He feels that the recent formation of military courts is clearly distinguishable from past attempts because it has been provided a constitutional umbrella. Prior attempts at forming military courts did not have proper legal cover, or any constitutional amendment to justify their existence. That being said, historically, the Supreme Court has upheld the supremacy of the Constitution, and struck down the formation of military courts as “unconstitutional, without lawful authority and of no legal effect” (PLD 1999 SC 504).
Feisal H Naqvi, prominent Supreme Court lawyer and legal expert, believes that there is a chronological precedent for the apex court to not challenge legislated amendments, despite an established pattern of ruling against military courts. Historically, there has been a lot of hemming and hawing by the Supreme Court on the matter of challenging constitutional amendments. But to date, the Supreme Court has never struck down a constitutional amendment, going back nearly four decades. In State versus Zia-ur-Rehman (PLD 1973 SC 49), the Supreme Court had held in 1973 that it was a creature of the Constitution, and subservient to it, including amendments, as long as they were competently and legally passed. The ruling specifically states: “...it is equally important to remember that it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limitations of the Constitution. Again if a law has been competently and validly made the judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions.”
“By and large, time and again, the Supreme Court has made it clear that it is not in the business of striking down or challenging constitutional amendments made by a democratic parliament, within the confines of the law,” concludes Naqvi.
Both experts believe that if the Supreme Court wishes to take the matter forward, much like the Mehram Ali and Liaquat Hussain cases, a larger, seven-member bench of the apex court will need to be constituted. The issuance of notices on Wednesday indicate that the matter will be taken up formally, and the apex court will carefully examine the legality of military courts.
The author is a journalist, development professional and a Senior Research Fellow at the Center for Research and Security Studies, Islamabad. He holds a Master’s degree in strategic communications from Ithaca College, NY, USA.
Email: zeeshan[dot]salahuddin[at]gmail.com
Twitter: @zeesalahuddin
Existing court judgments, specifically Mehram Ali versus the federation (PLD 1998 sc 1445) and the Liaquat Hussain Case (PLD 1999 SC 504) have declared the military courts unconstitutional, as no parallel legal system can be constructed that bypasses the operation of the existing courts.
The formation of the military courts is a tacit acceptance of two key facts. First, that the civil court system in Pakistan is ineffective and inefficient. The data supports this argument. Between 1990 and 2009, there has been a 74% acquittal rate in terrorism related cases, resulting in three out of every four suspects walking free. The average lifespan of a case in the civil courts is approximately 16 years, whereas well over three million (3,000,000) cases are pending in front of the judiciary. Second, the civilian government cannot uphold the tenants of the constitution, supremely the idea of providing security to citizens and access to justice without military facilitation. While the government has constructed a need-of-the-hour narrative, the military’s near pathological detestation of democratic egalitarianism in the past lead many to label this as a soft coup. Analysts also believe that in today’s climate, it would be impossible to stage a proper coup if one can achieve the same results by manipulating the political milieu surreptitiously.
A three-member bench of the Supreme Court, headed by Chief Justice Nasirul Mulk, took up identical petitions against the formation of the military courts on Wednesday, January 28. Seven petitions, including one from the Lahore High Court Bar Council, and another from the Pakistan Bar Council, argue that these steps are unconstitutional, and against the fundamental rights afforded in articles 8, 9, 10 and 25 of the Constitution. After a brief hearing, notices were issued to the four provinces and the federation, and the case was adjourned until February 12.
This step was predicted by Justice Wajihuddin Ahmed, former Supreme Court judge and former Chief Justice of the Sindh High Court. He feels that the recent formation of military courts is clearly distinguishable from past attempts because it has been provided a constitutional umbrella. Prior attempts at forming military courts did not have proper legal cover, or any constitutional amendment to justify their existence. That being said, historically, the Supreme Court has upheld the supremacy of the Constitution, and struck down the formation of military courts as “unconstitutional, without lawful authority and of no legal effect” (PLD 1999 SC 504).
Feisal H Naqvi, prominent Supreme Court lawyer and legal expert, believes that there is a chronological precedent for the apex court to not challenge legislated amendments, despite an established pattern of ruling against military courts. Historically, there has been a lot of hemming and hawing by the Supreme Court on the matter of challenging constitutional amendments. But to date, the Supreme Court has never struck down a constitutional amendment, going back nearly four decades. In State versus Zia-ur-Rehman (PLD 1973 SC 49), the Supreme Court had held in 1973 that it was a creature of the Constitution, and subservient to it, including amendments, as long as they were competently and legally passed. The ruling specifically states: “...it is equally important to remember that it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limitations of the Constitution. Again if a law has been competently and validly made the judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions.”
“By and large, time and again, the Supreme Court has made it clear that it is not in the business of striking down or challenging constitutional amendments made by a democratic parliament, within the confines of the law,” concludes Naqvi.
Both experts believe that if the Supreme Court wishes to take the matter forward, much like the Mehram Ali and Liaquat Hussain cases, a larger, seven-member bench of the apex court will need to be constituted. The issuance of notices on Wednesday indicate that the matter will be taken up formally, and the apex court will carefully examine the legality of military courts.
The author is a journalist, development professional and a Senior Research Fellow at the Center for Research and Security Studies, Islamabad. He holds a Master’s degree in strategic communications from Ithaca College, NY, USA.
Email: zeeshan[dot]salahuddin[at]gmail.com
Twitter: @zeesalahuddin