A question of jurisdiction relegates the issue of military courts.
In the end, given that the Supreme Court rejected the basic structure theory of the Constitution, it was easy to work out a verdict that dismissed the petitions against the 18th and 21st Amendments.
If there is no limitation, express or implied, on the powers of Parliament to amend the Constitution, and the amendments brought about in exercise of such power cannot, therefore, be challenged on any ground before any court, it stands to logical reason within this premise that the Supreme Court lacked the jurisdiction to strike down any amendment in the Constitution.
Corollary: it is not necessary to examine the grounds on which the 18th and 21st amendments have been challenged.
The court had earlier put together multiple petitions challenging the insertion of Article 175 A in the 18th Amendment and the 21st Amendment in its entirety, as also the amendments to the Pakistan Army Act 1952, on the issue of whether the Constitution has a basic structure that limits and constrains Parliament’s power to amend the Constitution and whereby any amendments made by Parliament can, therefore, be challenged before a court of law.
This is how the verdict puts it: “The said amendments have also come under challenge in a number of petitions, mostly filed by Bar Associations. The petitions challenging the 18th and 21st Amendments to the Constitution were clubbed and heard together as the two sets of cases involved a common constitutional question as to whether there are any limitations on the powers of Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment.”
Paragraph 44 of the verdict further explains: “44. The fundamental issue in all these matters is the power of the Court to strike down a constitutional amendment and the grounds or the basis for the exercise of such power. This question has remained the subject matter of cases before our Courts as well as in India and amendments to the Constitution have been challenged on the touchstone of the basic structure theory.”
Further into the verdict, the SC says: “53. … this Court has… consistently held that the basic structure theory has been recognized only to the extent of identifying salient or fundamental features of our Constitution. However, the theory has never been accepted or applied as a ground for striking down amendment in the Constitution. The Court has consistently refused to follow the position taken by the Supreme Court of India on the subject.”
The verdict makes clear in paragraph 55 that “The doctrine of basic structure developed in India as a result of the struggle for supremacy between the judiciary and the Parliament over interpretative finality over the Constitution.”
The verdict then goes on to mention, in paragraph 58, that the basic structure theory was developed in a particular context (Nazi Germany) and “does not have any universal acceptance in comparative constitutional analysis and also has limitations as highlighted in dissenting notes of Kesavnanda Bharati. Ideas cannot be uncritically borrowed from foreign jurisdiction, without understanding the particular histories of their development or appreciating their consequences in the host jurisdiction, especially when our own jurisprudence on the said question has already been settled and for good reasons.”
As part of the debate and arguments in relation to the basic structure theory, the SC verdict has, once again, settled the question of whether the Objectives Resolution constitutes basic structure or the Grundnorm and determined, with reference to previous judgments, that it does not, even after becoming a part of the Constitution.
If the court had determined, either unanimously or in a majority decision that there indeed is a basic structure to the Constitution which limits Parliament’s power to amend the Constitution in violation of such a structure, the court would have had reason, within its jurisdiction, to consider the vires of Article 175A of the 18th Amendment as also the 21st Amendment in its entirety in conjunction with amendments to the Pakistan Army Act.
The primary question that the SC’s 17-member bench sat down to consider thus related to its jurisdiction in relation to Parliament’s power to amend the Constitution. This point needs to be understood because, as is clear from the judgment, there is a very cursory discussion of whether, if at all, the constitution of military courts (nine, so far) will have any substantive impact on the conduct of the internal war Pakistan is fighting against the enemy within.
That question, let it be said, is a crucial one. It is also a question that can be asked and backed up with a lot of technical and operational data from other theaters of war around the world. But the SC never set this question up as the primary one. One can assume that if the SC had arrived at a different verdict, it might then have had to go into the intricacies of this question itself but that was not to be. As things stand, the SC, through its verdict, has left this in the hands of the legislature and, by extension, the executive, to determine. The problem is that the executive, in combination with the legislature, seems already to have taken that course without much thought being given to the effectiveness or otherwise of what it has done through the 21st Amendment and by amending the Army Act.
Interestingly, however, while the SC in its majority decision has rejected the basic structure theory, it nonetheless talks about “Salient Features” of the Constitution. But let’s come to this again in a moment and take up the basic structure theory first, the primary question.
“The 21st Constitutional Amendment, no doubt, pertains to the Salient Features i.e. the Fundamental Rights and the Independence of Judiciary. What is required to be adjudicated upon is as to whether the same has been substantively altered?” (pp-366, para 173)
Let’s consider this.
“180. In view of the aforesaid, it is held that:
(a) The Constitution contains a scheme reflecting its Salient Features which define the Constitution. Such Salient Features are obvious and self evident [sic] upon a harmonious and wholistic [sic!] interpretation of the Constitution. In an effort to discover such Salient Features material outside the Constitution cannot be safely relied upon.
(b) The Salient Features as are ascertainable from the Constitution including Democracy, Parliamentary Form of Government and Independence of the Judiciary.
(c) The amendatory powers of the Parliament are subject to implied limitations. The Parliament, in view of Articles 238 and 239 is vested with the power to amend the Constitution as long as the Salient Features of the Constitution are not repealed, abrogated or substantively altered.
(d) This Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any Constitutional Amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.”
The verdict does not explain how “a scheme reflecting [the Constitution’s] Salient Features which define the Constitution” is different from a basic structure. The absence of a basic structure that gives the Parliament unfettered powers should, by that very logic, also mean that Parliament has the power to amend the form of government—e.g., change it from parliamentary to a presidential form of government. But going by the SC verdict, while the Constitution has no basic structure and, therefore, the SC cannot strike down any amendment, the Parliament, nonetheless, is bound by Salient Features and the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features.”
This might be SC’s attempt to chalk a middle course between doing nothing now and being able to do something in the future, but it appears logically inconsistent with the rather long and arduous background and arguments the verdict presents in its rejection of the basic structure theory.
But let’s consider the issue of military courts. The SC, in paragraph 174, says that “The Pakistan Army Act, 1952, as it existed prior to the enactment of 21st Constitutional Amendment and the Pakistan Army (Amendment) Act, 2015, alongwith, [sic] Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961, were already excluded from the requirements of conforming with the Fundamental Rights by virtue of Article 8(3)(a).” Now, “Through the 21st Constitutional Amendment… the amendments made through the Pakistan Army (Amendment) Act, 2015, have also been excluded from such scrutiny.”
The SC, surprisingly, does not reject such exclusion but instead holds that “The amended provisions temporarily extend the protection conferred upon the Pakistan Army Act, 1952, to include the trial of Terrorists waging war against Pakistan. The Fundamental Rights of the overwhelming majority of the people of Pakistan, including those accused of criminal offences remains unaffected.”
Given this reasoning, the SC determines that “A temporary measure targeting a very small specified clearly ascertainable class of accused has been brought into the net to be tried under the Pakistan Army Act in accordance with procedure which has been held by this Court to be consistent with recognized principles of Criminal Justice.”
That said, the SC ‘hopes’ that in all such cases, “the imperative to act fairly and justly as reinforced by Section 24A of the General Clauses Act, 1897,… [will be] applicable.”
It then holds that “Neither the selection and the transfer of cases nor the eventual order or sentence are immune from the sanctity of Judicial Review by the High Courts and this Court. In the circumstances, it is difficult to hold that the essential nature of the Salient Features of Fundamental Rights as applicable in the Country has been repealed, abrogated or substantively altered.”
One does understand that SC did not have much wiggle-room after it rejected the basic structure theory. One can also argue that in circumstances of war and in the conduct of foreign and security policies, the executive must have the space to act expeditiously, though arguably judiciously, and, therefore, courts should refrain from interfering in the domain of policy.
Yet, given a rather well documented record of human rights violations by the police as well as other security forces, some measure of accountability must be instituted.
Moreover, and this is crucial in any technical and operational discussion of counterterrorism, whether netting and killing terrorists in and of itself will help bring this war to an end. There is increasing evidence from around the world that this may not be the case. Neither the SC nor the learned counsels arguing the petitions before it knew or know the intricacies of CT and CT practices. However, this question has now been lost by SC’s verdict on the limitations of its own jurisdiction.
Meanwhile, other things being equal, the SC’s assertion that higher courts retain the right to review cases determined by the military courts is merely to salve its conscience.
Haider is editor of national-security affairs at Capital TV. He was a Ford Scholar at the Program in Arms Control, Disarmament and International Security at the University of Illinois at Urbana-Champaign and a Visiting Fellow at the Brookings Institution, Washington, D.C. He tweets @ejazhaider