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January 28, 2015

SC takes up case against 21st Amendment today


January 28, 2015

ISLAMABAD: Supreme Court (SC) will face 27 basic questions of law while hearing petition filed by Lahore High Court Bar Association (LHCBA) through senior PTI leader Hamid Khan challenging 21st constitutional amendment. Apex court will start hearing petition today (Wednesday).
The apex court will have to decide whether any other judicial system completely independent of the country’s regular constitutional judicial system can be allowed under any interpretation or not. The petition maintained that allowing under any interpretation a parallel system of courts, which could try civilians with no right of appeal to superior judiciary, will be tantamount to compromising supremacy of the constitution.
The petition asks the Supreme Court that that judges of superior judiciary in their oath pledge to protect basic constitutional human rights of the people of Pakistan in following words; “That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan.” The petition relies on judges in Asma Jilani Case and Mehmood Khan Achakzai Case and argues that any such court or tribunal which is not subject to any administrative control or judicial review of the judiciary cannot be allowed to be grafted in the judicial framework of the constitution. The petition highlights basic importance of principle of independence of judiciary by relying on Asma Jilani case in following words: “…it has been held in the judgment of Asma Jilani (PLD 1972 S.C. 139) that Objectives Resolution is the grundnorm of the Constitution of Pakistan. This grundnorm clearly postulates: (i) That the independence of judiciary should be secured. (ii) That the judiciary would be a guardian and guarantor of the fundamental rights of the people of Pakistan, particularly in relation to equality before the law, equality of status, equality of opportunity, freedom of expression, belief, faith, worship and association and rendering of social, economic and political justice.

The fundamental rights would be of no consequence unless there is an independent judiciary available to guarantee and enforce them.
In view of the above, any amendment in the Constitution that would undermine the independence of judiciary would be violative of the grundnorm of the Constitution of Pakistan.”
The petition prays that as under any interpretation of 21st amendment, military courts could not be allowed so apex court should strike down this constitutional amendment.
The petition raises following 27 questions which apex court will answer while giving judgement on the petition: 1- Whether the parliament can lawfully amend the constitution in a manner which tends to destroy the basic structure of the Constitution itself?
2- Whether the citizens of this country can be denied their inalienable right to enjoy the protection of law and to be treated in accordance with law.
3- Whether the abrogation of fundamental rights in the garb of a constitutional amendment can be allowed in a parliamentary democracy?
4- Whether, the 21st amendment to the constitution could have been passed by the Parliament thereby altering the basic features of the constitution itself?
5- Whether, a court or a tribunal which is not subject to the supervision of the judiciary can be allowed to function despite the fact that the constitution envisages separation of the judiciary from the executive?
6- Whether the theory of basic structure and of salient features is an established and accepted touchstone for legislating constitutional amendments and whether the parliament could be allowed to close its eyes from the afore-stated phenomenon.
7- Whether independence of judiciary is a basic feature of the Constitution and forms part of its basic structure?
8- Whether independence of judiciary is part of the grundnorm of the constitution as set out in the objectives resolution?
9- Whether parliament is empowered to undo a basic feature of the constitution and to change its basic structure in exercise of its power of amendment to the Constitution?
10- Since the judiciary is entrusted with the exclusive function of interpretation of the constitution and enforcement of fundamental rights guaranteed under part Ill of the constitution; therefore, whether its independence would constitute one of the salient features of the Constitution?
11- Whether the preamble of the constitution read with Article 2A stating that “the independence of judiciary shall be fully secured” postulates that the independence of judiciary is a basic and inviolable principle of the constitution and constitutional system of governance in Pakistan?
12- Whether amendment in the salient features of the constitution identified by the SC in the judgment of Zafar Ali Shah case (PLD 2000 S.C.869) namely independence of judiciary, federalism and parliamentary form of government blended with Islamic provisions are beyond the pale and powers of the Parliament?
13- Whether the constitution of 1973, as originally framed by the Constituent Assembly whose members were specifically mandated to frame the said Constitution, has certain unalterable salient features which cannot he changed, modified, amended or repealed?
14- Whether the separation of judiciary from other organs of state, executive and legislature, would also constitute the basic principle (grundnorm) of the structure of the Constitution, both in its present and historical perspective?
15- Whether the parliament through its powers to amend the Constitution can undo the doctrine of separation of powers particularly relating to separation of judiciary from the executive?
16- Whether under the basic scheme of the constitution, the parliament and the judiciary are to be separate institutions of the state?
17- Whether enforcement and protection of fundamental rights under the constitution is the primary duty and obligation of the judiciary? Whether such a duty and obligation can only be performed by an independent judiciary?
18- Whether fundamental rights form part of the basic features of the Constitution and the failure to enforce them through an independent judiciary would render them illusory and ineffective’? Whether enforcement of fundamental rights is a constitutional obligation for the judges in their oath under the Constitution?
19- Whether an independent judiciary is essential to the preservation of the fundamental rights under the constitution? Whether the rights to life, liberty, property and character presuppose an impartial interpretation of laws and administration of justice?
20- Whether the most prized civil liberties and freedoms guaranteed by the Constitution presuppose an independent judiciary through which these liberties and freedoms provided under the fundamental rights can be protected?
21- Since it is a settled proposition of constitutional law that the constitution is supreme and sovereign in countries with written constitutions, therefore, whether the institutions and organs of state are required to work within their own respective domains assigned to them by the constitution?
22- Whether the present parliament, which is not a Constituent Assembly, had the mandate to change the original provisions or the Constitution, particularly those relating to the judiciary?
23- Whether the parliament in its amendatory powers is not competent to change the basic features and basic structure of the constitution?
24- Whether maintaining independence and autonomy of the Courts would be in the larger national interest of dispensation of justice to the people of Pakistan?
25- Whether any clog or embargo placed upon the independence of judiciary would be detrimental to the democratic dispensation in the country? Whether constitutional history of Pakistan has proved that weak and pliable judiciary becomes an instrument in the hands of the dictators, military or civilian?
26- Whether the earlier judgments of the SC in the cases of Mahmood Khan Achakzai (PLD 1997 S.C. 426) and Pakistan Lawyers Forum (PLD 2005 S.C. 719) rejecting/ignoring established theory of the basic structure of the constitution ought to be revisited in the context of the 21st amendment?
27- Whether the 21st amendment is violative of the fundamental rights in general and Article 10A and 25 of the constitution in particular because it curtails the powers of the judiciary to enforce fundamental rights and is negation of fair trial, due process of law, equality before law and equal protection of laws?

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