It is after a good deal of thinking that I decided to write a few words on this truly historic matter, now pending before the grand Supreme Court of Pakistan. This matter deals with the problem of a two-sided question: can a constitutional amendment, properly passed or enacted, ever be struck down? And does the 21st Amendment to the Constitution, as a result of which a new regime of military courts has been established, meet the criteria for one to be struck down in part or in full? While there are many other questions which the parties may like to address, this remains to the mind of this author, the major matter to be clearly responded to by the court.
Effectively, one needs to reiterate the facts to press home the manifest from the ordinary. Here, the Parliament did so to gain the timely advantage of driving the obvious truth from the well thought out argument, that the law does not recognize the often repeated stand that the constitutional scheme of things must not be so soft that it allows the courts to get out of the regime which is there to watch over such vicissitudes. One can say that the perpetual regimes are there for all times to come.
In the legal sense it has raised the old question of human rights and the longevity that they must have, as a simple matter of legal durability. Can the Parliament create an exception to the existence of fundamental rights in cases to be tried under the new military courts tenure in office? It does not need a great deal of legal knowledge of the philosophy of jurisprudence to see that by doing so it has taken away the right of the superior judiciary to enforce fundamental rights in those specific cases.
It is a clear abomination of the rule of law doctrines, but perhaps justified in the name of expediency because the terror had reached a magnitude that threatened to engulf state and society. What is needed is thus, is a straight forward approach that is ‘enlightened’ enough to have a deeper look at the realistic nature of the problem, one that the court can conceivably solve. The Court has been placed in a most tantalizing situation by the simple thinking of those who wanted two things: To punish those it considered to have committed offences against the integrity of the country, without regard to the niceties of the Constitution. Another is to have the criminal law to deal with the resultant situation.
The basic idea is thus, of a more comprehensive criminal legal system and not merely one that can superficially satisfy the timely demands of an executive. What is needed is to attend to the original problem which is a decrepit criminal justice system and the consequential need for urgent reform. Here, ‘reform’, means a combination of legislative and executive action, however, regrettably the Parliament demonstrated not even the slightest interest in getting the government to focus on criminal justice reform.
It is now certain that Pima facie appears that after giving into the military to establish the new regime of military courts to try so-called jet-black terrorists, parliament and the government are seemingly happy with the “sunset clause” in the 21st Amendment, whereby the parallel regime is set to lapse in 2016. If the ordinary criminal justice system is not in shape to deal with the threat by then, then what whatever may happen is left to one’s imagination.
I have tried herein, to meet the demands of a society that is beset with the clear history of the larger problem of having a judiciary and the knowledge that the judges will be there to help the nation, when there is a requirement for it to perform. But there is just no need for the judges to be involved in this kind of struggle, where I have argued myself, over several Supreme Court matters and fully realize the enormous pressure that is brought on all those who are actually involved, to solve the dilemma. Hence, what is really needed is to leave the results to the Court and just find it safe to simply raise one’s voice, so that the relevant authorities may know what is happening.