The devil and the deep blue sea

TV’s talking heads are dizzy with excitement: the sun’s boiling, the signs are ominous, and the judges are battening down — decision time approaches.

A breathless insider told this very paper “that though the summer vacations of judges have started, they have not yet availed [leave] as they are busy in writing down their observations. The officials said a few judges even did not visit their hometowns on the weekend and were present on the SC premises to finalise the verdict.”

Yes, the end is nigh. Like the Warren Court in Brown, like the Chaudhry Court in Sindh High Court Bar Association, the Mulk Court has met its moment with the 21^st Amendment. Before stepping down next month, the Chief Justice — and the bench beside him — is to weigh in on the future of military courts. Whichever way they sway, the country’s changing for good.

That the tribunals require doing away with isn’t lost on anyone — plain and simple, it’s a bad idea. From no appeal to tiny evidential standards, the right to a fair trial goes out the window. And for those who care little to afford that right to the killers of children (why cry ‘due process’ for animals that deserve to die), there’s another issue: military courts just won’t solve the problem anyway.

Whatever Islamabad says. For the centre, more highways mean less traffic — it follows that more courts (and harsher laws) mean less terror. But as with the ATA and PPA and special courts galore, that isn’t true; forget curing our cancer, terror’s only gotten worse. In short, the justice system can’t be fixed if it’s thought a hindrance to justice. Rather than two-year hanging bonanzas, it’s time we rework the courts we already have: protecting judges, securing witnesses, and improving evidence collection.

So when the 21^st Amendment was challenged in the Supreme Court, we breathed a sigh of relief. Relief that turned to regret, when we figured out just how it was being challenged. The SC’s been put in a pretty awful situation — military courts have been struck down in the past, but the past never saw a constitutional amendment creating said courts. And in a perfect world, only parliament gets to make or unmake the law; it’s the Supreme Court’s job to interpret it.

So if the people’s elected champions want military courts, it’s military courts they’ll get. The SC would do best, our lawmakers giggle, to look the other way.

But the legal eagles challenging the amendment disagree — they’re solving a knotty problem with an as-knotty solution: ‘basic structure’ theory. Ever since Indira Gandhi had a coronary over freethinking judges, the Indian Supreme Court vowed to put the lady in her place. It upheld the idea that the Constitution contains certain building blocks — literally a basic structure — immune to amendment by parliament.

An idea that sits just fine with the 21^st Amendment’s challengers: they plead our SC borrow from its Indian cousin, and hold that military courts jar against the very essence of the Constitution. But fighting fire with fire — or in this case, awful idea with awful idea — isn’t the answer. Consider the horror house that comes with it: judges will get to veto any parliamentary hi-jinks. They’ll get to say what’s ‘basic’ and what’s not, i.e., import their own values into the Constitution. And they’ll get to save potentially hateful bits of our past from parliament’s crayons forever.

Yet who can blame them: bad amendments make for bad theory. By happily ceding all space to the military, it’s parliament that’s gotten us into this mess. The thinking was put best by respected Justice Wajihuddin, “There are dos and don’ts of amending the Constitution … if parliament wants to amend the Constitution to turn the parliamentary form of democratic system into a monarchy, it can’t do it.”

So there’s the pushback: if parliament is willing to turn the country upside down with military courts, then the judges require getting rid of said courts. But basic structure isn’t the way to go about it.

A dilemma Pakistan-style: bulldoze the right to fair trial via military courts, or hand over the Constitution’s keys to the judges. Only Greece’s finance boys faced a tougher choice this past week — getting thrown around by the Germans, or getting thrown out of the Eurozone (they chose the latter).

Some, like Barrister Shehryar Riaz Sheikh, say there’s a third way out — getting rid of military courts without invoking basic structure. Because when it comes to all things military, the go-to provision is Article 245: “The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.”

Here’s the thing: no provision of the Constitution takes precedence over the other. That means our military courts’ amendment must be read harmoniously with Article 245.

Only, that’s not possible. First, the Taliban (and assorted sociopaths) aren’t external aggressors. Second, ‘war’ was never declared. Third, military courts aren’t “in aid of’ civil power” — they are a displacement of it, as held by CJ Ajmal Mian in Liaquat Hussain.

But the 21^st Amendment doesn’t touch Article 245. It doesn’t, for that matter, even explicitly talk about military courts. It merely exempts the Army Act from the Constitution’s fundamental rights provisions — a strange, circular way of pushing through military courts that could (and should) prove fatal.

Because even if we forget fundamental rights for a second, this Constitution still doesn’t provide for military courts without amending Article 245. Then there’re rumours more embarrassing — it seems the state jumped the gun. The 21^st Amendment was passed to protect the Army Act from fundamental rights provisions. But the Army Act itself was only amended to include trying terrorists later, as per the president’s signature.

That means the 21^st Amendment, at least at the time it was approved, was protecting an Army Act that still couldn’t try civilians. Technicalities yes, but all the more reason for the bench to think out of the box — pushing out military courts without pushing in basic structure.

Because between the devil and the deep blue sea, the Supreme Court may wish to take a breath.

Published in The Express Tribune, July 9^th, 2015.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.