SC Decision Subjects National Security to Judicial Review – Pakistan

The Supreme Court’s July 13 verdict on then-Vice President Qasim Suri’s decision offered a “new concept” when it pointed out that any defense or immunity claimed by the government on any policy or decision based on national security cannot escape judicial review unless justified with evidence.

“It is clear that the good faith of the defense of national security by the government (PTI) must be supported by evidence to justify Vice President Qasim Suri’s decision of April 3,” the 87-page unanimous judgment states, drafted by Chief Justice of Pakistan (CJP) Umar Ata Bandial and endorsed by the rest of the four Supreme Court Justices namely Justice Ijaz-ul-Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Judge Jamal Khan Mandokhel.

“This tends to show that no excuse or justification can be invoked by the government on any policy of a sensitive nature if it challenges the rights of citizens or is considered unconstitutional unless the government presents strong reasons to justify the defence,” commented a lead attorney on condition of anonymity.

Usually, courts avoid intervening in foreign policy or defense matters whenever the issue of national security is raised, he said, adding that the supreme court explained in the decision that “restraint exercised by the courts in matters of national security should not be absolute”.

Court provides reasons why judicial restraint in national security should “not be absolute”

Lead attorney Faisal Siddiqui, when approached, agreed that the Supreme Court, through the July 13 judgment, had presented a concept he called “a doctrine of limited judicial review. in terms of national security”, and addressed for the first time. the question elaborately.

When hearing cases such as the missing persons issue, courts including the Islamabad High Court (IHC) have generally ignored such allegations from the government and this was the first time that the supreme court provided a clear explanation on what grounds the court could “intervene or not intervene”, he said.

The lead attorney also referred to the “Memogate” scandal in which the government at the time upheld the political issue argument in the case, but the Supreme Court rejected it and did not explain any reason. in detail the reasons why he was withholding the question.

“Now governments will have to show in good faith their defense why a court cannot get their hands on the decision by taking refuge in national security. Thus, any logic based on frivolous grounds can be ignored by the courts,” Siddiqui said.

A senior Supreme Court lawyer, Hafiz Ahsaan Ahmad Khokhar, described the current Supreme Court precedent as “a great step towards the enforcement of fundamental rights of citizens in Pakistan”, which would provide the space for judicial review relating to government action on the application touchstone. fundamental rights. The court could also decide whether a government action was based on good faith or not, he added.

Simultaneously, Mr. Khokhar said, the judgment would require the government to provide evidence to support its alleged national security claim; would not automatically claim judicial restraint by mere assertion in matters of national security; and would not deny the fundamental rights of citizens.

He was of the view that despite taking a cautious approach to national security determinations, the Supreme Court for the first time categorically stated in reviewing prior domestic and international judgments that it does not There would be no absolute or blanket immunity available from judicial review in matters of national security and therefore, if proven otherwise, would be justifiable to the jurisdiction of the court.

According to the constitutionalist, the government will now have the obligation to justify by the production of evidence in support of an action that this case is indeed a matter of national security, failing which the higher court will be able to take cognizance of it and invalidate it. . for violation of fundamental rights.

In the July 13 judgment, the SC also mentioned the Memogate case recalling how in the Watan party case of 2012, a number of constitutional petitions were filed by different people seeking to investigate the note written by a former Pakistani ambassador to the United States. for the then US President of the Joint Chiefs of Staff (CJCS).

After reviewing the record produced by the parties, which included admissions made by government officials and the CJCS as to the existence of the memorandum, the Supreme Court in its latest decision dismissed the defense of “political question “raised by the government on the touchstone of fundamental rights.

In the case, the aggrieved parties invoked the jurisdiction of the court and evidence of the confessions was recorded, but the government was reluctant to appoint a commission of inquiry, the verdict explained, adding that the supreme court in these circumstances had formed a judicial commission to investigate. the origin, authenticity and purpose of the note.

The ruling stated that such preconditions were lacking in this case and therefore the defendant’s (PTI) argument that the SC should take up the issue of national security as well as the allegation of breach of sovereignty was unprecedented. The court, however, appreciated the reluctance of lawyers representing the previous government to share the encrypted March 7 message or fully disclose its contents.

The figure was sent to the Foreign Ministry by a senior Pakistani diplomat stationed in a foreign capital, alleging it established that the then opposition parties’ no-confidence motion against Prime Minister Imran Khan had been proposed at the request of a foreign state.

Explaining why national security deference by the courts should not be absolute, the judgment also cites one of the House of Lords judgments in which judicial review was held to be “admissible but only for narrow reasons”. ”.

In a citation to Application for Judicial Review, Law and Practice by Graham Aldus and John Alder, the decision noted: “There is a general presumption against ousting from the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are interpreted narrowly. .”

“There are, however, certain areas of government activity, national security being the paradigm, that the courts consider themselves incompetent to investigate, beyond an initial determination as to whether the government’s request is bona fide. ”

“In this type of non-justiciable area, judicial review is not entirely excluded, but very limited.”

Posted in Dawn, July 16, 2022