Daily Times

Earlier this month, the Supreme Court (SC) of Pakistan, struck down the challenges to the legitimacy of the 18 and 21 Amendments to the Constitution of Pakistan, thereby approving the creation of nine military courts for trying cases of militants. This meanst that the sentences handed out in the military courts — even death penalties — are recognised as legal in the eyes of the law. Erring on the side of ground realities, the verdict means that the justice system can now target the militants historically considered to be above the law.
The reaction to the apex court’s verdict has run the full gamut from assenting jubilation to principled dejection. As is always the case, the opposing parties embroiled in the legal battle were hoping for a favourable ruling but the ones desirous of shutting down a parallel system of justice in the form of special courts were left high and dry. The supporters, however, maintain that the verdict will further empower the security establishment of the country to provide security and other safeguards to Pakistanis that the traditional law and order institutions had failed to provide. As a matter of fact, the two-year sunset clause proved decisive in placating the SC in the creation of military courts, since the establishment of such special courts with no time limitations would have produced an altogether different verdict.
Upon closer inspection though, the judgment throws up all kinds of caveats. While the creation of military courts has been upheld, the SC has kept to itself the important power to review the decisions taken in such courts if the condition of fair trial is not met. Additionally, the SC made it clear that the original decision of referring a case to the military courts by the federal government can also be reviewed by the court. Not only that, but experts well versed in legalese have pointed out that although the supremacy of parliament has been kept intact, the SC’s position as the ultimate arbiter in such matters remains intact.
Interestingly, the 11-6 majority verdict did not constrain any dissenting judges from fully expressing their opinions, an opportunity used fully by the newly appointed Chief Justice (CJ), Justice Jawwad S Khawaja. As can be expected from the personnel in charge of deciding cases in the highest court of the land, his 25-page dissent portrays the principled opposition to the verdict. The dissenting justices maintain that the Constitution of Pakistan is in fact imbibed with some provisions that are simply inalterable, the right to due process for every citizen being one. In light of this, parliament, while exercising its rightful powers of amending the Constitution, cannot change the salient features or the basic structure of the document itself.
The opponents of the SC’s verdict maintain that such decisions are used to provide legal cover to military interventions by invoking the infamous Doctrine of Necessity and in this way the issue is by no means settled. While the majority verdict has rested in favour of the justices that maintain that parliament is the supreme lawmaking body in the country and that the SC of Pakistan does not possess the powers to question the rationale of parliament, it will be interesting to see how the decision will be reviewed in the future, now that Justice Jawwad S Khawaja has taken the CJ-ship.
Viewed through a pragmatic lens, the verdict has seemingly reconciled the irreconcilable. It has given the ruling government the court’s approval by not striking down the amendments. It has also made the military happy since the special courts manned by military officers are being kept alive as well. However, the verdict has also given the SC the power to review the decisions of the military courts, thereby making all stakeholders happy in the process.
Additionally, the verdict hints towards the possibility of ‘cohabitation’ among three important stakeholders i.e., the judiciary, the army and the civilian leadership. Civil-military relations have been on the mend in the past few months, and while the power asymmetry has by no means improved when compared to the past, the two have nonetheless learned to exist with each other. To that end, the third-time Prime Minister (PM), Nawaz Sharif, has finally realised that interfering in the internal matters of the military will do him no good and vice versa the military leadership has decided to focus on issues of survival and security without conceding any ground.
However, the real crux of the matter is that the verdict is an acknowledgement of a failed criminal justice system. The regular channels for indicting criminals have not been functional for quite some time and, in a practical move, the SC has replied to this travesty in the form of the majority decision upholding the creation of military courts. However, as the previous paragraphs have illustrated, the SC might have conceded for the time being but, in retaining the power of judicial review, it has upheld the basic idea of justice until the time the regular courts are given enough backing to try the really hard cases.
In the coming days, we are bound to see the impact this verdict will have on the direction of our national policies. Individual personalities are also to surely factor in, especially in the wake of incoming changeovers in the higher judicial and military echelons. For now though, the SC verdict means that military courts are here to stay. One can only hope that the pragmatic rationale portrayed in the apex court’s decision will also be reflected in the proceedings of military courts, where the SC verdict is used to decide on critical matters in a fair manner rather than being used as a justification for aggrandisement.

The author is a freelance columnist with degrees in political science and international relations