Today, Wednesday, 05th of August, 2015 would hardly revive much notice. However, five years ago, as Courtroom 1, at the Supreme Court building on Constitution Avenue, Islamabad stood packed with lawyers, journalists and activists alike, and their cohorts flooding in, anticipation brewed to the cusp. A total of thirty nine Constitution Petitions (twenty four challenging the vires of the Eighteenth Amendment to the Constitution and fifteen challenging the establishment of Military Courts vis-vis the Twenty-first Amendment to the Constitution) were due to be decided.
Soon, the gateway at the back of the Bench was cleared. Supreme Court Justice after Justice slowly emerged till all seventeen of them took their respective places on the Bench, each shadowed by sketch(es) of former Chief Justices of Pakistan over his shoulder. Silence now reigned over the entire courtroom.
The Attorney General for Pakistan, his accompanying law-officers and at least 31 of the most senior advocates in Pakistan, all approached the rostrum. The Chief Justice, Nasir-ul-Mulk, clasped a paper and read aloud:
“…by a majority of 13 to 04, these Constitution Petitions are held to be maintainable. However, by a majority of 14 to 03 the Constitution Petitions challenging the Constitution (Eighteenth Amendment) Act (Act X of 2010) are dismissed, while by a majority of 11 to 06, the petitions challenging the Constitution (Twenty-first Amendment) Act (Act I of 2015) and the Pakistan Army (Amendment) Act (Act II of 2015) are dismissed.”
Media personnel immediately scurried out of the room, and before whispers and murmurs could permeate through the court, the Justices stood up, and walked back through the pathway that had led them there. The remaining occupants conversed and chatted, then soon dispersed and vacated the courtroom and the rest is history.
The full bench of the Supreme Court i.e. all seventeen Supreme Court Justices has not convened for adjudication since, nor has Parliament’s power to amend the Constitution been dilated upon in such detail by the August Court since.
By way of background, the Eighteenth Amendment to the Constitution, enacted on 20th April 2010, was predicated upon the premise of federalism, devolution and decentralization. Political parties had unanimously acceded to the clamour for provincial autonomy, for the implementation of a Federalist mode of government. Legislative, executive and financial authority was devolved to the provinces in order for each province to determine and cater for its necessities accordingly. Fundamental alterations were also made to the rules on membership of Parliament, minority representation therein, and the process of appointments to the superior judiciary.
Conversely, the Twenty-first amendment to the Constitution, etched into the Official Gazette of Pakistan on 07th January 2015, with simultaneous amendment to the Pakistan Army (Amendment) Act, established an institution of military courts to try a specific class of intransigent terrorists. The amendment, guided by its preamble, had a clear premise: bringing terrorists to justice in the wake of the horrific Army Public School attack three weeks earlier.
In no less than thirty hearings, the Supreme Court entertained legal discourse and engaged in constructive dialogue with all counsel. The result was comprehensive. The judgment itself offered diverse opinion: ten of the seventeen Justices, including the Chief Justice and five future Chief Justices, offered independent judgments/notes.
The majority, with eight judges countenancing Justice Sheikh Azmat Saeed’s judgment, held that Parliament could make amendments to the Constitution on its own accord. The basic structure, a theory utilized in other jurisdictions for invalidation of Constitutional amendments, was held to be no more than academic dogma. However, the Court did reserve unto itself power to judicially invalidate amendments to the salient features of the Constitution i.e. Democracy, Parliamentary Form of Government, Independence of Judiciary and the Rule of Law etc.
In contrast, the minority headed by Justice Jawwad S Khawaja, the senior puisne Judge, was far more firm in its refusal to cede judicial autonomy to Parliament. To him, and his co-dissenters, Parliament could not embark upon a transformation of the Constitution and the judicial system illimitably. The Supreme Court, as the apex judicial institution, was bound to preserve the Constitution.
Five years on, the impact of the Supreme Court’s judgment has been transcendent, to say the least. In a nutshell, Parliament’s competence to amend the Constitution was declared unassailable, with a caveat of course, to enable the judiciary to preserve its powers of judicial review of Constitutional amendments in the future albeit on limited grounds.
Considerable time has elapsed since the pronouncement of the judgment. Yet little clarity emerges. The process of devolution from Federation to the provinces has remained consistently contentious. Similarly military courts have ceased to try specific classes of terrorists because that arrangement was merely temporary in nature i.e. effective for two years only.
Perhaps more propitious circumstances will epitomize ideological concurrence and harmony but till then debates among constitutional law aficionados will rage on. Academics, lawyers, jurists, perhaps even judges may continue to dabble in philosophy. Regardless, an axiomatic accord prevails: the Constitution, the magum opus of our predecessors, is a living organism evolving as times and tides change. Maybe it is time to enable it as such.