The Military Courts Case VI

Groucho Marx

Khosa, J. declines to embrace the basic structure approach and notes that the United States has not recognized basic structure test (note: the U.S. Constitution's unamendability clause is different):

20. I must record here a note of caution against unthoughtful utilization of purely academic theories by a court of law while adjudicating upon practical issues, particularly in matters affecting governance and running of the State. I may observe with profound respect to those in the academia that academic theories depicting intellect, scholarship and ingenuity and advanced through a lecture or a book are like intellectual kite-flying which may be essential or useful for intellectual growth, making contribution to jurisprudence and advancement of learning through triggering thought processes but such theories remain in the air till they attain general acceptability on the ground. It may be quite hazardous for a court of law to decide constitutional or legal issues solely on the basis of half-baked academic theories until such theories mature and season as doctrines fit for being used as standards or yardsticks and until they attain general acceptability or widespread recognition. The theory of basic features or basic structure of a Constitution is one of such academic theories which is still in its nascent or embryonic stage and attempts made to introduce or apply the said theory in courts of law have so far failed to meet any noticeable success on the broader canvas.

59. Groucho Marx [sic, should read Georges Clémenceau] had once observed that Military justice is to justice what military music is to music. It is not for me to sit in judgment over which kind of music the people should prefer or to dictate how the people of my country should want justice to be served. I respect the choice and the will of the people as long as the choice made or the will expressed is within the bounds of the Constitution or is adequately and properly protected by it and it is here that my jurisdiction in the matter begins and ends.

[The Army Act amendment took effect after the 21st Amendment, and hence doesn’t come within its scope.]

71. The discussion made and the conclusions reached above lead me to hold that that the Constitution (Twenty-first Amendment) Act (Act I of 2015) had failed to protect or immunize the Pakistan Army (Amendment) Act (Act II of 2015) either from the sway of Article 175 of the Constitution or from application and enforcement of the fundamental rights guaranteed by the Constitution and that the military courts for trial of civilians constituted or authorized under the Pakistan Army (Amendment) Act (Act II of 2015) have not been founded on any power conferred by a Constitutional provision and, therefore, the ratio decidendi of the case of Sh. Liquat Hussain (supra) is equally applicable to the case in hand rendering the Pakistan Army (Amendment) Act (Act II of 2015) pertaining to trial of civilians by military courts unconstitutional, without lawful authority and of no legal effect and it is declared accordingly.

72. Before parting with the issues raised in connection with Acts No. I and II of 2015 I may observe that none of the said enactments has expressly ousted the jurisdiction of this Court or of the High Courts to examine matters pertaining to trial of civilians by military courts and for such ouster of jurisdiction the learned Attorney-General had referred to the provisions of Article 199(3) of the Constitution. This Court has already clarified on a number of occasions that the purported ouster of jurisdiction under Article 199(3) of the Constitution is not relevant where the impugned proceeding, action or order of a military court is without jurisdiction, coram non judice or mala fide . . . .

73. As a result of the discussion made above I have concluded as follows:

(i) In view of the clear and categorical provisions of Article 175(2) and Article 239(5) and (6) of the Constitution I have not felt persuaded to accept the academic theory of basic features or basic structure of the Constitution as conferring jurisdiction upon this Court for striking down an amendment of the Constitution. . . .

(iii) The Constitution Petitions assailing the Constitution (Twenty-first Amendment) Act (Act I of 2015) and the Pakistan Army (Amendment) Act (Act II of 2015) are partially allowed and the Pakistan Army (Amendment) Act (Act II of 2015) is declared to be unconstitutional, without lawful authority and of no legal effect. As a consequence of this declaration all the trials conducted and the appeals decided by the military courts deriving authority from the Const. P. No. 12 of 2010 etc Pakistan Army (Amendment) Act (Act II of 2015) are to be treated as non est and all the judgments delivered by invoking that law are rendered incapable of implementation and execution.

(iv) As an outcome of the declaration made above in respect of the Pakistan Army (Amendment) Act (Act II of 2015) the Constitution (Twenty-first Amendment) Act (Act I of 2015) has lost its raison d‘être, efficacy and utility and, therefore, no determination needs to be made about its fate or continued existence.