ISLAMABAD: A dissenting but minority judgement by six judges of the Supreme Court against the majority judgement of 11 judges has declared the 21st Amendment as well as trials of the accused by military courts as illegal and unconstitutional.

In his dissenting note, Justice Jawwad S. Khawaja held that the 21st Amendment was liable to be struck down since parliament was not a sovereign or supreme body in the sense that there were no limitations on its power to amend the constitution.

Also read: Military courts get Supreme Court nod

“The limitations on the parliament are not only political but are borne out from the constitution itself,” he observed.

He said the Supreme Court had the power to judicially review a constitutional amendment passed by the parliament and to strike it down where appropriate. But Article 175A as amended by the 19th Amendment is not liable to be struck down as it does not transgress the limitations of parliamentary power to amend the constitution.

“Our legal and constitutional history has amply demonstrated that laws can be made by parliament which does not necessarily represent the aspirations of the people. In the 2010 NRO case, the Supreme Court held that even so it is for parliament to make laws regardless of whether the same are unpopular or are based on expediency. This power to make laws (including constitutional amendments), however, is not absolute and untrammelled,” observed Justice Khawaja.

The maturity of the nation is reflected in the manner in which differences are resolved in accordance with the governing compact, which is the constitution. “Differences of opinion between constitutional bodies or organs of the state cannot be seen as adversarial turf-wars between the two bodies,” he said.

Parliament’s power to make laws is not absolute and untrammelled:Justice Khawaja

“All constitutional bodies and functionaries must have the common aim that the constitution which embodies the will of the people is enforced because this is an obligation set out in the constitution itself. It, therefore, must be accepted and implemented both in letter and in spirit with sincerity by every organ and functionary of the state,” Justice Khawaja observed.

Justice Asif Saeed Khosa partially allowed the petitions challenging the 21st Amendment and the Pakistan Army (Amendment) Act (PAA) 2015 by declaring the amendments 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 PAA are to be treated as non est and all the judgements delivered by invoking that law are rendered incapable of implementation and execution,” he said in his dissenting note.

“As an outcome of the declaration made above in respect of the PAA the 21st Amendment has lost its raison d’être, efficacy and utility and, therefore, no determination needs to be made about its fate or continued existence.”

Justice Khosa, however, did not 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 and thus dismissed the petitions challenging the 18th Amendment.

Justice Ejaz Afzal and Justice Ijaz Ahmed Chaudhry allowed the petitions challenging the two amendments by holding that the Supreme Court can examine the vires of any amendment and annul it if it impairs, undermines or alters any of the parts forming the basic structure of the constitution.

There is nothing in the 18th Amendment to impair, undermine, or alter any of the parts forming the basic structure of the constitution and, therefore, the petitions questioning its vires being devoid of merit are dismissed.

The 21st Amendment also impairs, undermining and altering the parts forming the basic structure of the constitution, is ultra vires and thus non est.

Justice Dost Mohammad Khan observed that the parliament had no authority to reverse the process of independence of judiciary, which had attained finality and that too through such strategy as was provided under Article 175A, which would also politicise the judiciary in the end. Otherwise, it will be against the will of the people and the entire scheme of the trichotomy of powers.

“Accordingly, Article 175A (appointment of judges) inserted through the 18th Amendment is declared ultra vires and being in conflict with the provision of Article 175, carrying a firm command with regard to independence of judiciary, is hereby struck down and shall remain no more the part of the constitution,” the verdict said.

About the 21st Amendment, the verdict said that due to unwise, irrational and wrong policies both on the external and internal fronts, made and followed during the long dictatorial rule, which were unfortunately not largely disapproved by the successive democratic governments, had plunged the country/nation into unmanageable crises, the war waged against the state by the non-state actors on their ill-perceived notions.

The 21st Amendment and all subsequent amendments made through ordinary legislation are declared null and void being unconstitutional and shall be deleted from the constitution as a whole. All the proceedings, inquiries, trials, investigations and convictions as well sentences recorded by the military courts so established under the 21st Amendment are declared illegal and unconstitutional.

Justice Qazi Faez Isa, in his dissenting note, observed that the Anti-Terrorism Act, 1997, if implemented, would help stem terrorism and also ensure the conviction of terrorists. He said the 21st Amendment did not succeed in its attempt to try civilians by the military. The military, which is a part of the executive, cannot conduct criminal trials because judicial power can only be exercised by the judiciary.

“Laws relating to the duties and the maintenance of discipline in the armed forces, the police or other forces may be excluded from the application of fundamental rights as stipulated in Article 8 (3a), but the said provision cannot be extended to provide for the trial of civilians by the military,” Justice Isa said.

The amendment to the PAA takes away and abridges the fundamental rights mentioned in Chapter 1 of Part II to the Constitution and, therefore, the same is void.

Published in Dawn, August 6th, 2015

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