Sunday, August 9, 2015

The Military Courts Case III

Khawaja, J.

4. For reasons stated in this opinion, I am of the view that Parliament is not sovereign as its power to amend the Constitution is constrained by limitations which are clear from the reading of the Constitution as a whole. Secondly, these limitations are not only political but are subject to judicial review and, as a consequence, this Court has the power to strike down a Constitutional amendment which transgresses these limits.

17. i. . [I] is significant to recall the oft ignored fact that clauses (5) and (6) as reproduced above were not part of the Constitution as originally framed. These provisions were inserted in the Constitution by General Zia-ul-Haq in 1985 through a process which does not inspire the same kind of legitimacy as the process which culminated in the framing of the original Constitution. The dubious provenance of these clauses makes it doubly difficult for the Court to rely upon them for overriding the letter and spirit of the entire Constitution. . . .

[The opinion contrasts parliamentary supremacy in the UK and Pakistan.]

91.  The People, who are the originators of the Constitution, must remain its owners. It would not be justifiable if their representatives who are entrusted with the Constitution and are deputed to preserve, protect and defend the Constitution, are allowed without restraint to make any and all changes in the Constitution. Having thus concluded that this Court has the power to judicially review a constitutional amendment passed by Parliament, the second part of this opinion becomes simple. The above principle can now be applied to see if the eighteenth or twenty-first amendments or any parts thereof challenged before us can be struck down for being violative of the Parliamentary mandate allowing it to amend the Constitution.

[Khawaja, J. joins with Isa, J in voting to strike down the 21st Amendment.]

125. Finally, as Courts and Judges, we are obliged to adhere closely to the Constitution and must avoid being swayed by unexamined assumptions or get trapped into “mechanical deduction from rules with predetermined meanings”. It is equally important to avoid basing our legal judgment on alien theories and philosophies, divorced from our own historical and Constitutional context. Our search for answers to constitutional issues cannot afford to ignore the kernel within. . . .

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