After five months of hearing petitions challenging the 18th and 21st Constitutional Amendments, the Supreme Court dismissed both petitions in a split decision announced on Wednesday.
Delivering a much awaited verdict on the 18th Amendment by a majority of 14 to three, the court upheld the supremacy of Parliament with the outgoing Chief Justice Nasir-ul Mulk noting that there is no limitation on the power of Parliament to amend the Constitution, and that amendments so made are not challengeable on any ground in any court.
The 902-page judgement also settles once for all the argument whether the 1973 Constitution has some salient features or a basic structure that cannot be touched by the nation’s highest legislative forum. The verdict holds that neither the basic structure theory nor the Objectives Resolution could be made grounds to annul any amendment to the Constitution.
On the controversial 21st Amendment authorising changes in the Army Act to establish military courts for trying hardcore terrorists, a majority (11 to six) decision reflected a general division of opinion in civil society and the unease with which military courts are viewed for disregarding essential fair trial requirements. The Supreme Court Bar Association is to meet on August 12 to consider filing a review petition against the 21st Amendment case judgement. Nonetheless, extraordinary situations such as the one presently facing the country warrant extraordinary measures.
As it is, known terrorists routinely get exonerated from civilian courts because witnesses are too afraid to come forward to testify, and even judges under threat to deliver justice. An infamous sectarian terrorist openly warned a presiding judge that he knew where his children went to school.
Then there is the example of the anti-terrorism court judge who had to leave the country immediately after pronouncing death sentence in the murder case of Punjab governor Salmaan Taseer. The special military courts are a temporary arrangement to deal with the specific problem of terrorism.
Needless to say a civilised society tries to meet ends of justice even in such trying times. Hence, an attempt has been made to provide a civilian oversight. It will be for the civilian authority, the interior ministry to be specific, to select, and refer the cases for trial by military courts.
And the apex court can review any federal government decision to refer a case to these courts. More importantly, like in the normal legal course, the high courts and the Supreme Court are to retain the judicial review authority.
Which is different, though, from the right of appeal in that such a case cannot be retried necessitating fresh evidence and other legal requirements; it is to be examined on other considerations. As per the verdict, “… any order passed or decision taken or sentence awarded in such trial shall be subject to the judicial review on the grounds of Coram non judice, being without jurisdiction or suffering from mala fide”.
Hopefully, the present crisis situation will be resolved by the time the sunset clause in 21st Amendment comes to an end in two years. In the meanwhile, the judiciary and the executive must put their heads together to address the infirmities in the criminal justice system that has failed to meet the present challenge.
They must do all that is necessary to institute an effective witness protection system, provide security to judges hearing sensitive cases, and also deliver justice in an efficient manner without undue delays.