Sharafat A Chaudhry & Dr Ejaz Hussain

Majority opinion prevails and becomes the precedent while a dissenting opinion may lay the foundation for an alternative theory of law

Time becomes the best judge when the judge finds difficulty in adjudging conflicting claims. While writing the dissenting note on the legality of military courts — established through 21st Constitutional Amendment earlier this year — the six judges of the Supreme Court (SC) of Pakistan put the judgment of the rest of the (11) judges in jeopardy, especially in the eyes of the legal fraternity. On August 5, the SC dismissed a bulk of 15 petitions against the 21st Constitutional Amendment in an 11 to six judgment and validated the inviolability of military courts. The judgment becomes interestingly questionable and triggered a debate over its sanctity when six among 17 members full bench wrote the dissenting notes. The sitting Chief Justice (CJ) of Pakistan, Justice Nasirul Mulk, the author of the judgment, will retire on August 16 this month and will be succeeded by Justice Jawad S Khawaja, who wrote the dissenting note.

The judgments of the two CJs (one is sitting and the other has already been notified by the president of Pakistan) stand polls apart. Justice Naisurl Mulk held that “there are no limitations, express or implied, on the powers of parliament to amend the Constitution” and consequently the “court lacks jurisdiction to strike down any amendment in the Constitution”, and he does not consider it even necessary to examine the grounds on which the 18th and the 21st Amendments were challenged before the apex court. While, on the other hand, Justice Jawad S Khawaja dissented by observing that “this court has the power to judicially review a Constitutional amendment passed by parliament and to strike it down where appropriate.” He observed that, in our legislative history, it is parliament that made laws “unpopular or are based on expediency”, which did not necessarily represent the aspirations of the people.

The history of writing dissenting notes in judgments by the courts is very interesting. Majority opinion prevails and becomes the precedent while a dissenting opinion may lay the foundation for an alternative theory of law. Dissenting and concurring opinions are important because, when the times change, they have scope to become the opinion of the majority. Hence, to review grounds on which the judges of the apex court pronounced their dissenting opinion in the judgment on the 21st Constitutional Amendment seems highly significant.

CJ Justice Nasirul Mulk delved upon the difference between the law and Constitution, and held that the law and Constitution should not be mixed. First, the SC has jurisdiction to review any law that is against the Constitution but cannot review the Constitution in itself under Clauses (5) and (6) of Article 239, which states that “no amendment of the Constitution shall be called in question in any court on any grounds whatsoever…and there is no limitation whatsoever on the power of parliament to amend any of the provisions of the Constitution” as methodologically the amendments in the Constitution are different from the law. Secondly, no constitutional provision is superior to the other. It implies that in the pretext of saving fundamental rights, any other provision of the Constitution may not be abrogated, subverted or undermined. 2

Conversely, the dissenting opinion of Justice Jawad S Khawaja is based on arguments that a) the Constitution should be read as whole instead of picking and choosing certain parts, and b) clauses (5) and (6) of Article 239 were introduced by the then military dictator General Ziaul Haq through a presidential order on March 17, 1985 to protect his own rule. Thus, these provisions do not hold such sanctity against the protection of fundamental rights, which are an original part of the Constitution. Hence, it is the duty of the court to protect the fundamental rights of each citizen without any discrimination. Justice Asif Saeed Khosa also observed similarly that fundamental rights have been guaranteed to the citizens that require protection from encroachment by the executive and the Legislature. Justice Qazi Faez Essa comprehensively argues on the importance of fundamental rights and the duty of the court for their protection. It is opined that “the use of the word inalienable in Article 4 is of immense significance”, which signifies the importance of fundamental rights that are “inalienable” and cannot be denied at any cost.

Interestingly, the CJ and 10 other judges do not even consider it relevant to discuss this while the dissenting judges wrote compressive arguments on this issue, which may be of interest to every human rights activist and concerned citizen. These dissenting opinions refute the legality of military courts on the following grounds. First, it is an utter violation of Article 25(A) of the Constitution by giving discretionary powers to the government to choose certain accused to be tried by the military courts under the Pakistan Army Act, 1952, while others by the ordinary courts, as all citizens require equal treatment and are presumed to be innocent unless they are proven guilty. Secondly, military courts amount to establishing a parallel judicial system and, thirdly, conferring powers of the judiciary to executive (military personnel) amounts to subverting the basic essence of the Constitution, i.e. separation of powers.

During the course of arguments presented by the counsels of either side, references to the judgment of the Indian Supreme Court, judgments made by the UK’s and US’s judges, and western political philosophy remained under discussion. The Basic Structure Theory, supremacy of parliament and Social Contract Theory were argued and discussed at length in the judgment. Justice J Khawaja made an interesting note that, out of context, reference to supremacy of parliament and the Social Contract Theory of Hobbs and Lock seem irrelevant. He opined that John Rawls re-interpreted the Social Contract Theory in modern times but it was easily refuted by Amarteya Sen in his book The Idea of Justice. It seems that two different schools of thoughts were sitting in the bench. One section interpreted the Constitution in its literal and narrow form while the other, heavily influenced by post-modernist thought, interpreted it liberally. For the former, documented legislation seems important while for the latter human beings seem important for which this legislation is documented. Time shall reveal whether the majority opinion accepts the dissenting opinion or it remains dissenting even in the future.

It is interesting, that this judgment of the SC of Pakistan did not curtail the powers of parliament and legitimise the military courts but at the same time consolidated its own powers as well by keeping the authority of judicial review over the judgment of military courts with itself. The full bench has agreed that the SC had the authority to review the government’s selection of cases to be referred to military courts’ judgement announced by such courts. Finally, the judgement will impact Pakistan’s judicial and security context decisively as the military courts still have a sunset clause. It is to be seen whether the Pakistani state is able to productively utilise this duration to curb terrorism and religious extremism or extension is sought for the military courts.