CONSTITUTIONAL LAW (LLM-1)

ASSIGNMENT ON HOW WAS THE ESTABLISHMENT

OF MILITARY COURTS FOR TRIALS OF TERRORISTS
VALIDATED BY THE SUPREMECOURT OF PAKISTAN?
ANALYZE THE JUDGMENT

Submitted to:

HIDAYAT UR REHMAN
ASSISTANT PROFESSOR

Submitted by:

BABAR HAYAT
+92-333-9727007
[email protected]

Introduction / Background History

After the horrific attack on Army Public School in Peshawar, the entire
nation went into a grave shock and pain, which leads the government to
take desperate measurement in the shape of 20-point National Action Plan
wherein empowering the military courts to try civilian for terrorism related
offences, was also included. Through 21st amendment in Pakistan
Constitution and certain amendments to the Army Act, 1952 the military
courts jurisdiction was extended over civilians. Both the amendments had
a sunset clause which will lapsed on 6th of January 2017.
Consequently, some 11 military courts were set up in the four provinces in
Pakistan for 2 years. In March 2017, the Parliament extended the tenure
of these courts for another 2 years. Meanwhile, the Supreme Court of
Pakistan also formally validated the establishment of these military courts
through a landmark detailed verdict announced in August 2015. According
to ISPR, military courts have taken up 717 cases, and 345 terrorists have
given death sentences in four years. So, the conviction rate in these
courts has been pretty high compared to civilian criminal courts in the
country. The military courts established in Pakistan have constantly been
criticized by various quarters for some reasons. Essentially rejecting the
extraordinary-circumstances-warrant-extraordinary-measures reasoning,
the critics find it hard to accord this ‘parallel judicial system’ with the
tenets of human rights and due process of law. To them, the procedure
adopted by the military courts is not strictly in accordance with the Article
10-A of the Constitution of Pakistan, which ensures the due process and
fair trial to an accused person.
On the other hand according to Rule of Law Index 2018 released by the
World Justice Project, Pakistan stands at 81th and 106th positions in
terms of criminal and civil administration of justice respectively – among
113 assessed countries around the world. Owing to numerous lacunas in
our existing dispensation of criminal justice, the criminals and anti-state
elements manage to go scot-free most of the times. This is the reason a
known sectarian terrorist like Malik Ishaq could not be effectively
convicted by any criminal court until he was killed in a police encounter in
July 2015. On the other side, we have observed the plight of our judicial
system in the Ayyan Ali case. If a judicial system cannot promptly nab and
convict an ordinary criminal, how can it be relied to punish high-profile
terrorists in the country?
Aimed at improving the general quality of dispensation of justice in the
country, the superior judiciary has been formulating various National
Judicial Policies for a long time. These policies include measures like fixing
time-frames for the disposal of different cases, capacity building of judicial
officers, and guidelines for the efficient disposal of cases, eradication of
corruption, improvement of the quality of investigation by the police,
prison reforms, installation of video conferencing facility between the
courts and jails etc. Unfortunately, all these NJPs have also failed to yield
any fruitful results due to lack of sincerity on the part of the concerned
stakeholders – the bench and the bar.

Former Chief Justice of Pakistan Mian Saqib Nisar had expressed his
strong intention to substantially reform the country’s judicial system. But
regrettably, he has only been interested in his self-styled “judicial
activism” than anything else throughout his term in office. Some
representative bodies of lawyers, political parties, and rights groups have
been holding conventions and meetings against the establishment of
military courts. But ironically, these groups have never raised their voice
to overhaul, or otherwise improve, this troubled judicial system. More
than four years have elapsed since the establishment of these courts but
no pragmatic plan has yet been evolved to switch this system back to
normal. Therefore, now it is quite useless to shed crocodile tears over this
‘demise of constitutionalism’.

ANALYSIS OF SUPREME COURT JUDGMENT

District Bar Association (Rawalpindi) v Federation of Pakistan
PLD 2015 SC 401

The case concerned a challenge to three constitutional amendments- the

18th, 19th and 21st Amendments- each touching, inter alia, on the principle
of judicial independence. The 18th Amendment enacted a host of wide-
ranging changes, including laying down a new procedure for judicial
appointments, increasing provincial autonomy through abolition of the
Concurrent Legislative List, enacting changes to the representation of
religious minorities in the Parliament, and altering the powers of heads of
political parties over legislators concerning voting on certain specified
matters.  The 19th amendment provided for the modalities of appointment
of judges to the superior courts, including underlining the role of the
newly constituted Judicial Council of Pakistan, which envisaged a greater
role for the executive branch in appointments. In turn, the
21st Amendment involved the formation of military courts to try individuals
believed or known to be part of terrorist organizations using the name of a
religion or sect. It generated controversy because of the classification
permitting differentiation and unequal treatment under the constitution,
and concerns of a lack of due process in military courts. Promulgated with
a two-year sunset clause, the amendment expired in 2017.
The primary questions before the court were the following: a) If there
were any limitations (implied and substantive) on the powers of the
Parliament to amend the Constitution? [5] If the first question was
answered in the affirmative, and thus there were indeed limitations on the
amending powers of Parliament, did the court possess the power to strike
down unconstitutional amendments?

The main question facing the Supreme Court in the 18th and 21st
Amendments was not whether military courts are good or bad, but
whether the Court has the power to judge constitutional changes
introduced by Parliament by a two-thirds majority.
The SC was therefore required to determine whether section 239, i.e. (5),
"no constitutional amendment is called before a court for any
reason"; and (6) "for the suppression of doubt, it is heresafter stated that
there is no limitation regardless of Parliament's power to amend any of
the provisions of the Constitution") has given way to judicial review of
constitutional amendments.
"The doctrine of the basic structure has itself... ended up becoming (and
this was easily foreseeable) a vehicle for judicial expansion of power at
the expense of the elected representatives of the people. Conceptually, it
is devoid of merit and represents only a ship in which judges can pour any
economic, political or social theory, as can take their whim or whim at any
time.
This succinct critique of the basic structure theory, reflecting fidelity to the
limits imposed by the explicit text of the constitution on the power of
judges, is unfortunately not part of the majority opinion of the SC.
These are the words of Judge Saqib Nisar who alongwith Justice Nasir ul
Mulk, Asif Khosa and Iqbal Hameed Ur Rehman, objected to the opinion of
13 judges appropriating for the SC, for the first time in our judicial
history, the power to write off constitutional amendments on the basis of
doctrine of basic structure i.e. that this constitution has certain
fundamental characteristics not mentioned in the constitution itself and
not exhaustively stated by the judges in the judgment) which may also
never be amended by Parliament, even with a unanimous vote.
For example, 13 judges found that there were undeclared limits on the
power of the parliament and it is the court that will decide as an
amendment is adopted if such an amendment violates one of the salient
features of the basic structure of the Constitution. This means that the
Court has limited the legislative authority of Parliament, that every
constitutional amendment will be challenged and that the fate of the
amendment will cling to the subjective opinions of the judges who make
up the Supreme Court at the relevant time.
One consequence of the SC's ruling is that the military courts are here to
stay. Eight of the 13 judges who believe that the SHC can rule on the
legality of constitutional amendments have ruled that military courts are
kosher and do not contrafly the salient features of the Constitution,
including the separation of powers and the independence of the
judiciary. Three of the four individuals who believe that the Court has no
power or undertaking to rule on constitutional amendments have
concluded that they have no jurisdiction to rule on military courts. This
then produced 11 votes against the abolition of military courts.
Five of the 13 judges who approve the doctrine of the basic structure have
concluded that the 21st Amendment (and the constitutionally protected
military tribunals) violate the salient features of the Constitution, amount
to Parliament violating its authority and therefore not being considered a
ground. Khosa J.A., while opposed to the basic structure, interpreted the
constitution and considered the timing of amendments to the Military Act
and the Constitution to conclude that military courts are not protected by
the 21st Amendment. Since only six out of 17 votes, the military courts
remain alive.
Justice Azmat Saeed is the author of the eight-judge plurality judgment
that approves the doctrine of the basic structure while rejecting
challenges to the 18th and 21st Amendments. The judgment also
concludes that the executive's decision to send cases to military courts as
well as military court proceedings/decisions will be subject to judicial
review as long as they suffer from a lack of jurisdiction, non-judicial
coram or ill-being (this is a reiteration of the judicial test set to
disrepresce eviction clauses such as that of the Army Act excluding the
jurisdiction of civil courts).
The judgment of Chief Justice Nasirul Mulk and supported by Justice Iqbal
Hameedur Rehman, while rejecting the doctrine of fundamental structure,
clarifies that the exercise of the power to refer cases to military courts and
that decisions/sentences handed down by those courts are subject to
judicial review. As a result, a majority of 10 judges explicitly held that
those who are sent to military courts and the sentences they have handed
down can be challenged in the writ's jurisdiction on one of the three
limited grounds. (However, this is not a new law and our courts have
always been reluctant to interfere with court proceedings or results)
The judgment is the worst of both worlds: it grants unelected judges a
veto over the choices made by the Pakistani people through their elected
representatives regarding the content of the fundamental law that forms
the contract between them and their state; and it demeans the doctrine of
separation of powers and grants formal judicial approval to the retrograde
view that the fundamental rights of citizens are not inalienable and can be
suspended in the face of security challenges and due process protections
and be judged by an independent judicial system are luxuries that (non-
convicted) terrorism accused do not deserve.
In the 900-page judgment and the various frankly articulated opinions, we
see the reflection of a court struggling to reconcile conflicting views on the
preferred moral and legal responses to the vexing problem of terror, just
like the rest of us. What is regrettable is that a majority of judges of our
highest court (which is designed to be immune to the transitional feelings
of the time) seem to grant the fundamental rights of citizens subsidiary
status in our constitutional system. This approach to the inalienable rights
of citizens recognized in all civilized societies will remain a stain on our
jurisprudence until it is cleaned up by a future SC.
It would have been different if the court had decided by a majority that,
despite the wisdom of the 21st Amendment and Parliament's decision to
place an accused's right to due process and a fair trial at the mercy of
architects and those responsible for our national security policy, the
Supreme Court has constitutional authority only to interpret the law and
not to return it, and so the Pakistani people and the people of Pakistan are
left to the united states. to judge whether the inclusion of military courts
in our constitutional system is a good idea or a bad idea.
But here we find a court that occasionally jumps to "enlarge" its own
power "to the detriment of the elected representatives of the people" with
no sense of irony or a hint of awareness that public acceptance and
support for military courts is rooted in the narrative that our criminal
justice system, overseen by the judicial system, is failing this country and
its people. That military courts be seen  as necessary for evil and
acceptable (not only for our wild west but also for urban violance) because
due process and fair trials in ordinary courts have become a sactuary for
terrorists.
The eight-member plurality judgment that carried the day reflects a
pragmatic mindset and the judges' decision to go with the flow for now,
but arm themselves with the tools to fight another day. The army should
be happy because it has obtained its military courts. The government
should be happy because its amendments have not been overturned. In
addition, judges should be happy because they now have a veto over
constitutional amendments. But also because with the khakis exercising
judicial powers and the crowds cheering on instant executions, no one will
focus on the failures of our criminal justice system for at least a while. (1)

Conclusion:
The Pakistani Supreme Court’s decision in District Bar Association,
Rawalpindi v. Federation of Pakistan (2015) serves as a good illustration
of an attempt of judicial self-empowerment, akin to a Marbury v. Madison-
style moment.[2] By this I mean that the strategy adopted by the court in
this case bears unique similarities to the one adopted by Chief Justice
Marshall in Marbury v. Madison (1803)[3] where he exhibited “a
willingness to yield to the will of other branches of government, while at
the same time creating a space for the Court to provide constitutional
interpretation on the actions taken by other branches of government.”[4]
The plurality opinion, despite their finding entrenching judicial review over
constitutional amendments, upheld the legality of the amendments in
question. The eight judges in plurality, combined with the four dissenting
judges who also upheld the amendments, indicates that a total of twelve
of seventeen judges on the bench arrived at this holding. The case serves
as an outstanding illustration of a judicial attempt at self-empowerment:
the majority decision to recognize the power of judicial review, while also
upholding the amendments, bears hallmarks of Marbury v. Madison.[5]
The judgement represented the first occasion on which the Supreme Court
of Pakistan clearly authorized substantive review of constitutional
amendments on the basis that there are implied substantive limits on
Parliament’s power to amend the Constitution (though there was
disagreement on the sources of the power of judicial review: i.e. the
‘Salient Features’ doctrine vis-à-vis the Constitution). However, endorsing
a doctrine and actually using it to invalidate constitutional amendment are
not the same.[6] This is amply borne out by the decision to uphold the
amendments.
The holding is crucial in that it is an indicator of the willingness of the
court to exercise this previously unused power of judicial review to hold
amendments unconstitutional, a power which if duly expanded and
exercised in this manner, will bring the jurisprudence of the Supreme
Court of Pakistan more in line with its South Asian counterparts.

While it is indeed challenging to identify how, and in what types of cases,

the Pakistan Supreme Court might choose to exercise this newly
established power in the future, an attempt can be made at an educated
guess. This is an issue that can be framed under the overarching context
of the relationship between the parliamentary form of government, and
Pakistan’s religious character as an ‘Islamic’ state. This also marks the
fundamental distinction between the Pakistani and Indian basic structures.
While they both share similarities in referring to judicial independence,
fundamental rights and federalism, in Pakistan, the Constitution’s ‘salient’
features do not stress a parliamentary form of government accompanied
by secularism, instead including a parliamentary form of government
‘blended with Islamic provisions’.

The debate around former Pakistani Prime Minister Nawaz Sharif’s

disqualification in the Panama Papers corruption scandal, and the legal
basis for that removal under Art. 62 (1)(f) [7] of the Pakistani
Constitution, presents an interesting illustration.[8] The provision requires
every Pakistani parliamentarian to be ‘righteous’, ‘honest’ and ameen (i.e.
honest in a specifically religious sense). Having failed to disclose all his
sources of income, the former PM was considered ‘dishonest’ and duly
disqualified under this provision, which raised several questions of the
future direction that basis structure jurisprudence may take.
Hypothetically, if at some point in the future, a governing party sought to
avoid the fate of PM Sharif, they may attempt to introduce a constitutional
amendment to revise Art. 62(1)(f), or at any rate seek to circumscribe the
scope of the provision, which as currently worded is open to wide-ranging
interpretation. Indeed, should such an amendment be passed, it can be
speculated that the court, under pressure from activists seeking to defend
the Constitution’s fundamental attachment to ‘Islam’, may choose to
strike down this amendment on the ground of a ‘basic structure’ violation,
in this case, a ‘parliamentary form of government blended with Islamic
provisions’. Therefore, should we witness the court invoking judicial
review in the future, it is likely that these powers may be exercised in
matters that fundamentally implicate the relationship between the
doctrine and religion-State relations. This would duly cement the
characterization of the case as Pakistan’s Marbury-moment.

References:

Suggested citation: Neil Modi,  District Bar Association, Rawalpindi v. Federation of Pakistan:
Marbury-Style Judicial Empowerment?  Dec. 1, 2019, at:
http://www.iconnectblog.com/2019/12/district-bar-association-rawalpindi-v-federation-of-
pakistan-marbury-style-judicial-empowerment/

[1] Article in the Daily Nation Newspaper; Author Babar Sattar dated 15 th August 2015
(2) This concept is based on a forthcoming article by Professor Yvonne Tew, Georgetown
University Law Center. Yvonne Tew,  Strategic Judicial Empowerment in Comparative
Contexts  (forthcoming).
[3] Marbury v. Madison, 5 U.S. 137 (1803).
[4] Stefanus Hendrianto’s “Law and Politics of Constitutional Courts: Indonesia and the
Search for Judicial Heroes.”  See  Yvonne Tew, Book Review: Yvonne Tew on Stefanus
Hendrianto’s “Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial
Heroes”, Int’l J. Const. L. Blog, January 17, 2019,
at:  http://www.iconnectblog.com/2019/01/book-review-yvonne-tew-on-stefanus-
hendriantos-law-and-politics-of-constitutional-courts-indonesia-and-the-search-for-judicial-
heroes/  (arguing that “unlike ‘weak-form’ review, which is purportedly focused on
promoting a democratic “dialogue” between courts and legislatures, the Marbury-style
approach is strategically directed at empowering the courts vis-à-vis the political branches”)
[5] Majid Rizvi,  South Asian Constitutional Convergence Revisited: Pakistan and the Basic
Structure Doctrine, Int’l J. Const. L. Blog, 18 September, 2015.
[6] Matthew Nelson,  Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan:
Reconfiguring the Constitutional Politics of Religion, 13 Asian J. Comp. L. 333 (2018).
[7] Constitution of Pakistan, Art. 62(1)(f): “A person shall not be qualified to be elected or
chosen as a member of Majlis-e-Shoora (Parliament) unless he is sagacious, righteous and
non-profligate, honest and ameen, there being no declaration to the contrary by a court of
law.”
[8]  Id. at 352. Indeed, the illustration (of the proposed amendment) has been alluded to by
not just the author Matthew Nelson, but other scholars of Pakistani constitutional law
including Waqqas Mir, the press, and also in the scholarship of a lawyer that was later
elevated to the Pakistani Supreme Court.