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OUR judges are angry that they are being used as scapegoats. Those who have been discharging their duties fairly, diligently and with integrity have a right to be angry. But does individual excellence entitle them to disown the burden of the judiciary’s chequered history and dismal overall performance? Today, no matter who you speak to, the judiciary’s report card leaves much to be desired. Military courts are no solution to our problem of terror. But the general sense is that civilian courts are also part of the problem and not the solution.
The 21st Amendment has been challenged before the Supreme Court on the basis that parliament even with two-third majority does not possess the legal capacity to alter the basic structure of the Constitution. The Supreme Court will be asked to follow the Indian Supreme Court verdict in ‘Kesavananda Bharati’ and hold that while our parliament has wide powers it still cannot deconstruct basic features of our Constitution such as separation of powers and independence of the judiciary.
The Supreme Court will be encouraged to strike down the amendment, reclaim its rightful role as an independent pillar of the state and redeem its honour. Should the apex court succumb to such temptation, it would be a big mistake. If the court elects to exercise its inherent power to interpret the Constitution in a manner that fetters the explicit power of parliament to amend the Constitution, it would be stepping on the wrong side of democratic and jurisprudential principles as well as public opinion.
There are few who can claim that the courts are doing a decent job.
Let us acknowledge that even after 67 years of our existence we still have no consensus over what constitutes our basic norm (Kelson’s Grundnorm) ie the basis of legitimacy of our legal system. There is also no consensus that disregard of the Constitution is unacceptable at all times. Our military dictators have had no trouble suspending the Constitution. And the truth is that military coups have come along with a conformist consensus that breach of the Constitution was in the best interest of the country and its people.
The Supreme Court went along with such consensus at the time of Musharraf’s first coup in 1999-2000. It opposed Musharraf’s mini-coup in 2007. But the distinguishing feature between what a majority of the judges did in 2000 and what they did in 2007 was not application of any principle of justice but public opinion. Musharraf’s coup was popular in 1999 and the judges went along. In 2007 Musharraf’s coup was against the judges. But more importantly, it was unpopular and could be resisted.
People came out on the streets against Musharraf and in favour of restoration of the judges. Restoration of judges was a means of establishing democracy and rule of law, which in turn was a means of fixing problems afflicting Pakistan. The judges were restored under public pressure, and post March 2009 the Supreme Court was viewed as a messiah that could save this wretched country.
But the judiciary under Iftikhar Chaudhry failed Pakistan and its people: it did nothing to augment the judiciary as an institution and revive public faith in the ability of the judicial organ to dispense justice in a fair and expeditious manner. Today there are many who believe that military courts are no solution to defeating terror. But there are few who can stand up and claim in all earnestness that courts are doing a decent job and should be allowed to continue doing what they are doing.
If there is a basic norm in Pakistan that is recognised as a legitimising factor more than others, it unfortunately is new utilitarianism or consequentialism (ie in crude form, ‘ends justify means’). The argument here isn’t that utilitarianism or consequentialism is the right approach to constitutional interpretation. But that this has been our Supreme Court’s approach all along, including that of the post March 2009 populist Supreme Court. When the Constitution itself isn’t deemed sacrosanct, to argue that its unstated basic features are would be folly.
If we disregard public opinion as an extraneous consideration, the legal and jurisprudential arguments for striking down the 21st Amendment are even weaker. India’s basic structure doctrine, despite being a judicial construct, gained acceptance for it was employed to protect property rights of people and to prevent Indira Gandhi from suppressing her own prosecution after declaring a state of emergency.
Our Supreme Court toyed with the idea of employing the basic structure doctrine after the 18th Amendment in what appeared to be a means to protect its institutional turf. Should it wish to rely on the doctrine to strike down military courts, the sense of the Supreme Court acting as a judge in its own cause would be even more pronounced.
The Indian constitution was produced by a constituent assembly. Our Constitution wasn’t. To argue that its basic features can only be amended by a constituent assembly would only be a judicial contrivance to second-guess parliament’s wisdom without acknowledging so. There is no denying that the 21st Amendment has created ample basis to question such wisdom. But it’s not the judiciary’s job to do so. As a court of law, it is not for the Supreme Court to decide what should or shouldn’t form part of the Constitution.
There is no way to know whether an overwhelming majority of adult Pakistanis support military courts. But the system in place assumes that parliament is the embodiment of public opinion. Questioning this assumption would put in question the legitimacy of all legal instruments in force in Pakistan. And if parliament has misrepresented the people, the latter can hold their representatives to account in the next elections. What is indisputable, however, is that the court is neither representative nor accountable to the people.
This is a time for our judiciary to indulge in introspection. The 21st Amendment is less a solution to our problem of terror and more a vote of no-confidence in our judiciary. The anger felt by the few good men who keep our dysfunctional justice system running must be directed toward initiating judicial reform.
The writer is a lawyer.
Twitter: @babar_sattar
Published in Dawn, January 19th, 2015
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