Upholding the constitution

EDITORIAL: At the heart of the Supreme Court’s ruling rejecting trials of civilians by military courts – much to the glee of civilian supremacists and human rights defenders at home and abroad – is that reality that once again the highest court in the land had to decipher a central tenet of the constitution: that there is no need for military trials of civilians when a competent legal system already exists.

Of course, civilian governments can tweak or even alter this or any other provision of the sacred, binding document – as indeed they have in the past and will in future – but the correct way to do it, is through a constitutional amendment.

Therefore, as the government goes about preparing its appeal – which will be taken up by a larger SC bench – it ought to ponder over the last time parliament green-lighted such trials. It was after the Peshawar school massacre, through a mandatory constitutional amendment.

Yet even that amendment was not without a sunset clause; an implicit recognition of the constitutional requirement that the top court has leveraged to declare military trials of civilians “null and void” this time.

After the May 9 incident, the PDM (Pakistan Democratic Alliance) government ordered military trials through a very controversial resolution since it did not have the numbers for an amendment, throwing legal proceedings into a constitutional grey area.

The Supreme Court has now offered clarity, no doubt, but it’s still short of a “permanent endorsement of the constitutional order”, as sections of the press are calling it. Because the appeal before a larger bench will keep the waters muddied till another, definitive verdict shuts this case once and for all.

And since this matter stems from an extremely toxic political confrontation that culminated in the May 9 riots, it is sure to keep the pot boiling as the political elite gears up for the next general election. Already predictions and counter-predictions are all the rage on prime time TV.

That explains the perception, in some circles, that the court’s verdict somehow exonerates all 103 alleged civilian rioters being tried by military courts. There’s also the fact that, contrary to assurances, some of those trials have already begun despite earlier assurances of prior intimation to the SC.

So there’s plenty to stir controversy in the weeks and months ahead, since even mention of this case triggers feverish debate about political parties, their bitter disputes, the election and especially the role of the establishment in deciding the fate of the country.

Yet we can rest assured that the superior judiciary will not be bothered by any aspect of this debate. It will, once again, hear arguments that relate to the same clause of the constitution and duly deliver its judgment; which will be binding till a constitutional amendment can undo it. The fact remains, however, that May 9 rioters remain charged with their crimes, and it (still) remains to be seen which courts will hear their cases.

Copyright Business Recorder, 2023