August 2015

On Wednesday 5 August, the Pakistan Supreme Court issued a landmark judgment in the case of District Bar Association (Rawalpindi) vs. Federation of Pakistan (2015). Unfortunately, this judgment has been interpreted as enhancing the power of the Pakistan Army in the context of an intensifying but still poorly defined war on terrorism. In particular, press coverage has decried this judgment for its perceived support of a parallel justice system overseen exclusively by the Pakistan Army. In fact, this judgment did more to shore up the power of Pakistan’s Parliament.

Focusing exclusively on the establishment of military courts, most observers have missed the larger point of this judgment. Only one of the two constitutional amendments it examined concerned the establishment of military courts—courts that are, themselves, subject to a parliamentary process of renewal after two years. The other amendment concerned the process of judicial appointments. But the larger point of this judgment did not concern military courts or judicial appointments. The larger point concerned the power of Parliament to make constitutional amendments at all.

The primary issue underlying this judgment concerned the relative power of the Pakistani Parliament and the Pakistani courts. Could the Pakistan Supreme Court construct its own notion of the constitution’s ‘basic structure’ in order to reject an amendment introduced by Parliament according to procedures set out by the constitution itself? ‘Basic structure’ doctrines diluting the sovereignty of an elected parliament are prevalent in Germany. And, with greater relevance for Pakistan, they have also achieved some significance in India. However, in its judgment this week, the Pakistan Supreme Court rejected the Indian example and sought to limit its own judicial powers. In short, the Supreme Court sought to reinforce the power of Parliament.

A key feature of the opinion issued by Pakistan’s Chief Justice did not concern military courts. Focusing instead on the problem of ‘basic structure’, it concerned the degree to which Pakistan’s Supreme Court might refer to the basic structure of ‘Islam’ to nullify parts of the constitution (including specific constitutional amendments). Indeed, questions about the supra-constitutional power of Islam have emerged several times since Pakistan was founded in 1947. These questions grow out of a clause that began as Pakistan’s constitutional preamble—a clause known as the Objectives Resolution that was incorporated in the constitution as Article 2A in 1985. This article declares (a) that ‘sovereignty over the entire universe belongs to God almighty alone’ and (b) that in Pakistan, God’s authority has been ‘delegated to the state … through the chosen representatives of the people’.

As I have explored in greater depth elsewhere, one of the key questions in this week’s case concerned the balance of power in this article. Could the Supreme Court of Pakistan refer to ‘the sovereignty of God’ in order to strike down a constitutional amendment promulgated by ‘the chosen representatives of the people’? In short: was there any restriction on Parliament’s power to amend the constitution at all? Again this week, the Supreme Court of Pakistan said ‘no, Article 2A provides no check on parliament’s power to reshape the constitution’.

The constitutional amendments upheld by the Supreme Court this week—particularly those pertaining to military courts—may be unappealing. Indeed, many parliamentarians approved these amendments with great reluctance. However, Pakistani parliamentarians did approve these amendments in large numbers. It may be true that these parliamentarians are relatively weak when it comes to setting security policy in Pakistan. But, in many countries, parliamentarians have shown themselves to be relatively weak in the face of powerful sectoral interests: security, finance, gun lobbies, and so on. This week’s landmark ruling simply notes that, when that weakness turns into a constitutional amendment, responsibility lies with Parliament and the re-election process. 

There is no guarantee that this strictly political mechanism grounded in elections will work to ensure the promulgation of positive outcomes (because, again, elected parliamentarians may introduce unappealing constitutional amendments or laws). The point of this week’s Supreme Court judgment is simply to clarify the constitutional rules of the game and, specifically, to restrain the Supreme Court itself from relying on any 'basic structure' doctrine to usurp the powers of Parliament vis-a-vis the process of constitutional amendment.

Clarifying the rules of the game in ways that recognize the responsibilities of Parliament (rather than an unfettered military dictator, a president, an unelected band of clerics, or even a 'basic structure' doctrine determined by the courts) is a step in the right direction for Pakistan. This week the Pakistan Supreme Court stood up for the power of Pakistan’s Parliament.

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Dr Matthew J. Nelson is a Reader in Politics at the School of Oriental and African Studies and founding member of the Centre for Pakistan Studies and the Centre for the International Politics of Conflict, Rights, and Justice at SOAS.