Hart-Fuller Debate & The 21st Amendment

The Hart Fuller Debate and 21st Amendment t

The 21st Amendment to the Constitution of Pakistan after the Presidential assent on 7th January 2015 has become the law of the land. Notional debate on the substance of the Amendment in the media is still on. The purpose of this writing is to briefly examine some aspects of the Amendment.

Examining the 21st Amendment

The design of the 21st Amendment needs to be understood before embarking on its examination. A careful poring of the Amendment reveals that it has three operative parts. Its first part is contained in Section 1(3) of the Amendment Act, which is reproduced hereunder:

“The provisions of this Act shall remain in force for a period of two years from the date of its commencement and shall cease to form part of the Constitution and shall stand repealed on the expiration of the said period.”

This part is also called the sunset clause of the Amendment as it spells out the temporal application of the Amendment, and also pronounces the repealing mechanism.

The second part is contained in Section 2, and it aims to amend Article 175 of the Constitution. It reads:

“Provided that the provisions of this Article shall have no application to the trial of persons under any of the Acts metnioned at serial No. 6, 7, 8 and 9 of sub-part III or Part I of the First Schedule, who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect.

Explanation:- In this proviso, the expression ‘sect’ means a sect of religion and does not include any religious or political party regulated under the Political Parties Order, 2002.”

It may be noted that Article 175 is the first constitutional provision about the judiciary, and in fact, it is the constitutional legal basis for the establishment of the Supreme Court and the High Courts. A plain reading of the language of the Amended Article evinces that it is not constituting any courts; it is authorizing the trial of certain persons under special laws.

The Hart Fuller Debate and 21st Amendment 2

Section 3 of the Amendment Act enlists the four special laws to which Article 175 of the Constitution will not be applicable. These laws are:

“6. The Pakistan Army Act, 1952 (XXXXIX of 1952).

7. The Pakistan Air Force Act, 1953 (VI of 1953).

8. The Pakistan Navy Ordinance, 1961 (XXXV of 1961).

9. The Protection of Pakistan Act, 2014 (X of 2014).”

Specific Issues

Having gone through the letter of the Amendment, it will now be appropriate to examine, in brief, some of the specific issues.

1. Constitution of the Military Courts

It is generally believed that the 21st Amendment has constituted military courts; the impression is not supported by the language of the Amendment, which has only taken away the control of the superior judiciary over already constituted military courts (under Army, Navy and Air Force legislations). By application of Article 175 (read with specific legal provisions) of the Constitution of Pakistan, the constitutional courts in Pakistan exercise administrative, appellant, revisional, suo motu and residual jurisdiction over all the courts in Pakistan. The Protection of Pakistan Act, 2014 has constituted a special court under its Section 8, which is to be presided over by judicial officers. Why then the label of military courts is being ascribed to these courts? The answer is that alongside the 21st Amendment Act, the Pakistan Army Act 1952 has been amended through the Pakistan Army (Amendment) Act, 2015, and all the offences on the Schedule of Protection of Pakistan Act, 2014 and other such provisions in the Anti-Terrorism Act, 1997 have been added to it by its Section 2(1). The Naval and Air Force legislations are yet to be amended.

2. Authorization by the Federal Government

Section 2(2) of the Pakistan Army (Amendment) Act, 2015 has authorized the Federal Government to transfer cases of terrorists to courts constituted under the Pakistan Army (Amendment) Act, 2015, which essentially are military courts. The authorizing legal provision has not given any standard or basis for such transfers save the offences under which a person is to be tried. The discretion wrapped in the authority needs to be tempered through promulgation of appropriate rules, which may add certainty to the legal process. It may, however, be noted that the authorization is not new. It was part of the scheme of the Anti-Terrorism Act, 1997.

3. Forum Shopping

The concept of forum shopping is well entrenched in the Private International Law, and is one of the main impediments to an integrated legal system in civil justice in the European Union. The forum shopping provides any of the parties in legal system to opt one competent forum against another. In Pakistan’s context, unfortunately, the concept of forum shopping is very much in vogue in the anti-terrorism litigation. This is because the definition of ‘terrorism’ in the Anti-Terrorism Act, 1997 is very expansive and is capable of attracting vast number of cases enabling anyone to opt for prosecution under the law. Police often use the device to ward off pressure by referring cases on which emotions are high: the Section 7 of ATA is applied, which is, later on, contested, and the cases are reverted to the ordinary courts. The cost, the system of criminal justice pays, is high as the cases are, most often than not, spoiled, and the delay is inbuilt in it. The problem with 21st Amendment, inter alia, is that it encourages forum shopping, which needs to be checked. The issue relates to adjective law and has nothing to do with the merits of a legislation’s substance.

4. Witness Protection

The provisions of witness protection are contained in Section 21 of the Anti-Terrorism Act, 1997, which have been further fortified by amendments introduced in 2014. Analogous provisions are contained in Sections 9, 10 and 13 of the Protection of Pakistan Act, 2014. While Sindh has introduced its Sindh Witness Protection Act, 2013, the issues of concealing identity and changing property documents need to be addressed as amendments are required in the congruent federal legislations. Nothing has been added to this side of the equation.

5. Investigation

The lead agency to investigate a case is police department under the Code of Criminal Procedure, 1898. Many analyses of the acquittals in high profile cases have shown that the cases were not fully investigated and inadmissible evidence was presented before the courts. In fact, in many a case, the investigation is supported by the intelligence agencies, but without legal cover and without processing the evidence in a legal manner. Nothing has been done to improve the situation. The effort needs to be properly supplemented by improvement of collection and processing of evidence, which is the cornerstone of prosecution. Speedy courts alone cannot remedy the defects of prosecution and investigation, which needresources and trust by the administrative system.

6. Prosecution Strategy

A proper prosecution strategy has to be introduced. The turf battles of different organizations with similar set of duties have usually denied a well thought out prosecuting story to the prosecution resulting in acquittals in important cases. Quality investigations, if conducted, need to be fully supported by prosecuting strategy, in which, cases need to be organized in a manner that is coherent, logical and rational especially with respect to the sequence of events and incidents. Best criminal lawyers can only present the case, however, the strategy to prosecute the offenders must be masterly crafted to present the cases in lawful manner; this, however, needs synergy amongst organizations.

7. Appellant and Revisional Mechanism

Where does the ordinary criminal justice system converge with the special courts is a moot point worth a full-fledged research. In the judicial system, by using the collective and corrective wisdom, through the processes of appeal, revision and administration, the shortcomings are overcome. Where will appeals from the courts under the Pakistan Army Act, 1952 lie? Where will be the murder references confirmed? All these queries need clear answers. These matters are procedural, but have as much impact as the substantive provisions of the law have.

8. Implementation of the Death Penalty

Pakistan has kept a moratorium on death penalty for many years. The judgements of judges are as good as their implementation. Though, at the moment, the moratorium is suspended to the extent of terrorism cases, what will be the fate of death penalties awarded by the special courts is yet to be seen. Given Pakistan’s history of governance, which is essentially reactive, the implementation of death penalty will have to be closely watched. For example, the cases on the roster of special courts include the offence of kidnapping for ransom, which is also arraign-able by anti-terrorism courts. Hypothetically, if a case is decided by an anti-terrorism court against offender of kidnapping for ransom with death sentence, will it be implemented? Or, only the death penalty awarded by special court will be implemented? All these questions, at least for now, are shrouded with doubts.

9. Transitional and Ad Hoc Justice

The entry and exit into the special courts regime have been provided in the 21st Amendment. The issues related to transitional justice, however, have not been fully explained. The ad-hoc nature of the courts strikes at the heart of the judicial system.

10. International Human Rights Law

The 21st Amendment must also be examined in the backdrop of the framework of international human rights law. It may be noted that in 1985, the UNGA adopted Basic Principles on the Independence of Judiciary. Para 5 of the Basic Principles states:

“5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.”

Based on this para, Pakistan voted in favour of a Resolution of the United Nation Human Rights Council on April 10th, 2014, in which, the UN High Commissioner for Human Rights has been implored to appoint an expert consultation on the Administration of Justice through Military Tribunals. Therefore, at the moment, the determination of the experts’ consultation has to take place before it can be held that the military courts are not in consonance with the international human rights law.

11. Warfare to Lawfare

On January 2nd, 2015, Dawn newspaper reported that the Army has introduced a new post in the General Headquarters (GHQ) with the title Director General Lawfare Directorate where a Major General will be the head. The news is encouraging in as much as it recognizes, in principle, that security model of enforcement may ultimately be replaced with the criminal justice model.

12. Hart-Fuller Debate

The debate about good/bad law and valid/invalid law is not new to the jurisprudence. In the second half of the twentieth century, two legal philosophers H. L. A Hart and Lon Fuller engaged in an academic debate about what is the nature of law. Hart propounded the idea of the positivist school in which he stated that the legality of a law is about its validity; on the other hand, the naturalist school’s point of view was upheld by Fuller who said the legality of a law lies in its relationship with the morality. John Austin (a Positivist) succinctly predicted the essence of the concepts discussed in the debate in the following words:

“The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”

In the context of the 21st Amendment, the debate amongst the law practitioners is on the lines of Hart-Fuller debate, and if the legislation is ever challenged, the likelihood is that the judiciary will be employing the framework of the Hart-Fuller Debate for determining the constitutionality of the new law.

Concluding Remarks

The 21st Amendment to the Constitution of Pakistan has once again highlighted our monogenic problem of taking ad hoc decisions in reactionary manner; the subsequent legislation is likely to follow the pattern. The sacrifice of school children in Peshawar has provided the nation with another opportunity to think about taking professional, sustainable and timely decisions based on truth as only truth can set us free…veritas liberabit vos.

The Hart Fuller Debate and 21st Amendment 1

Leave a Reply

Your email address will not be published. Required fields are marked *