THE Supreme Court’s July 13 verdict on the then deputy speaker Qasim Suri’s ruling has propounded a ‘new concept’ when it highlighted that any defence or immunity claimed by the government on a policy or decision on the grounds of national security cannot escape judicial review unless substantiated with evidence.

“It is clear that the bona fides of the (PTI) government’s defen­­ce of national security must be substantiated by evidence to justify the April 3 Deputy Speaker Qasim Suri’s ruling,” says the 87-page unanimous judgment, which was authored by Chief Jus­tice of Pakistan (CJP) Umar Ata Bandial and concurred by rest of the four judges of the Supreme Court namely Justice Ijaz-ul-Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhel.

“This tends to show that no excuse or justification can be claimed by the government on any policy of sensitive nature if it involves rights of the citizens or considered to be unconstitutional unless the government comes out with a solid reasons to justify the defence,” commented a senior counsel on condition of anonymity.

Usually courts avoid interfering into foreign policy or defence matters whenever the national security issue is raised, he said, adding that the apex court explained in the ruling that “the restraint exercised by the courts in matters of national security should not be absolute”.

Court provides reasons why restraint exercised by judiciary in national security should ‘not be absolute’

Senior counsel Faisal Siddiqui, when approached, was in agreement that the Supreme Court through the July 13 judgement had brought forward a concept that he dubbed as “doctrine of limited judicial review in terms of the national security”, and touched upon for the first time the issue in an elaborate manner.

While hearing cases such as the issue of missing persons, courts including the Islamabad High Court (IHC) usually disregarded such claims on part of the government and this was for the first time that the apex court came out with an explanation in a clear manner on what grounds the court could “interfere or not interfere”, he said.

The senior counsel also referred to the ‘Memogate’ scandal in which the government of the time had taken the plea of political question in the case, but the apex court rejected it and did not explain reasons in a detailed manner why it was taking up the matter.

“From now on, the governments will have to show bona fide of its defence why a court cannot lay its hands on the decision by taking refuge of national security. Thus, any logic based on frivolous grounds can be ignored by the courts,” Mr Siddiqui believed.

A senior Supreme Court lawyer Hafiz Ahsaan Ahmad Khokhar described the present precedent of the Supreme Court as “a big step towards enforcement of citizens’ fundamental rights in Pakistan”, which would provide the space of judicial review relating to government’s action on the touchstone of enforcement of fundamental rights. Also the court could decide further whether an action of government was based on bona fide or not, he added.

Simultaneously, Mr Khokhar said, the judgement would bind the government to place evidence in support of their claim in matters of alleged national security; would not automatically claim the judicial restraint by mere assertion in matters of national security; and would not deny fundamental rights to citizens.

He was of the opinion that despite adopting a cautious approach in the matters of determination of national security, the apex court categorically held for the first time while discussing previous domestic and international judgments that there would be no absolute or blanket immunity available against the judicial review in matters of national security and thus matters, if proved otherwise, would be justifiable for court’s jurisdiction.

According to the constitutional expert, the government will be under obligation in future to justify by producing evidence in support of an action that this matter squarely falls within the ambit of national security, otherwise the superior court can take cognizance of the same and strike it down for violation of fundamental rights.

In the July 13 ruling, the SC also mentioned the Memogate case by recalling how in the case of 2012 Watan Party, a number of constitutional petitions were filed by different persons seeking a probe into the memo drafted by a former ambassador of Pakistan to the US for the then US Chairman of Joint Chiefs of Staff (CJCS).

After examining the record produced by the parties, which included admissions made by the government representatives and by the CJCS that the memo existed, the apex court in its latest ruling rejected the defence of “political question” raised by the government on the touchstone of the fundamental rights.

In the case, the aggrieved parties invoked the court jurisdiction and the evidence of admissions was brought on record but the government was disinclined to appoint an inquiry commission, the verdict explained, adding that the apex court amid these circumstances had formed a judicial commission to probe the origin, authenticity and purpose of the memo.

The ruling stated such prerequisites were lacking in the case at hand and therefore the respondent’s (PTI) plea that the SC should take up the matter of national security as well as allegation of breach of sovereignty was without precedent. The court, however, appreciated relucta­nce by the counsel representing the previous go­­v­ernment from sharing the cipher message of March 7 or to make a full disclosure of its content.

The cipher was sent to the Ministry of Foreign Affairs by a senior Pakistani diplomat stationed in a foreign capital alleging that it established that the no-trust motion by the then opposition parties against then premier Imran Khan was moved at the behest of a foreign state.

Giving reasons why the restraint exercised by the courts in the matters of national security should not be absolute, the judgement also cited one of the rulings of the House of Lords in which it was held that the judicial review was “permissible but only on narrow grounds”.

In a citation on Application for Judicial Review, Law and Practice by Graham Aldus and John Alder, the ruling highlighted, “There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively.”

“There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government’s claim is bona fide.”

“In this kind of non-justiciable area judicial review is not entirely excluded, but very limited.”

Published in Dawn, July 16th, 2022