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Friday March 29, 2024

21st Amendment liable to be annulled, saysJustice Jawwad

SC can review amendment by parliament and annul it where appropriate; parliament not sovereign in the sense of having unlimited power to amend Constitution; people to move court if parliament disobeys them; limitations on parliament are political, borne out from Constitution itself; judicial review power is to be guarded as it protects people against excesses of state organs, its functionaries; sub-clauses 6(c), (e) of Article 51 liable to be scrapped as they violate minorities’ promised rights

By Sohail Khan
August 06, 2015
ISLAMABAD: Justice Jawwad S Khawaja, senior most Judge of the Supreme Court in his 25-page dissenting verdict over the judgment delivered by the Supreme Court on the petitions, challenging the 18th and 21st constitutional amendments held that the 21st constitutional amendment is liable to be struck down.
He also issued the Urdu version of his verdict to meet the requirement of Article 251 of the Constitution. In view of Article 251(3), the Provinces may issue translations in provincial languages, he added.
The verdict in Urdu explained at point No 43 that if ever the Parliament transgressed its powers, the people would be left with no choice but to move the court (agar kabhee parleeman apnay ikhtiarat say tajawuz keray aur awam kay ehkamat ki hukm udoolee keray tou awam adliya say hee ruju kerain gay)
He observed: “As a Constitutional principle it must also be kept in mind that the powers vested in and exercisable by Courts are not a matter of parliamentary grace or sufferance, but are granted for the purpose noted above viz. to protect the people against excesses, inter alia, of State organs and functionaries.
As such these powers are to be guarded vigilantly against erosion and encroachment because the same are a grant of the Constitution for an important fiduciary purpose. The People who have granted the powers retain primacy in our Constitutional scheme. However, acknowledging the supremacy of the People, is very different from saying that Parliament is unfettered and can encroach on or reduce such powers granted to Courts, under the guise of amending the Constitution.”
He observed that the objective of the 21st amendment could have been achieved while staying within the constitution, but apparently such possibility did not receive the attention of the Parliament.
“I have had the privilege of going through the judgment proposed to be rendered by my learned brother Qazi Faez Isa, J., in respect of the twenty-first amendment. I am in full agreement with the reasoning and conclusions of my learned brother and, therefore, concur in the same, by holding that the said Amendment is liable to be struck down”, Justice Khawaja ruled.
“I wish to add that on account of the finding recorded by me on Article 63A, the twenty-first Amendment is liable to be struck down as a necessary consequence of my opinion that the words “or a Constitution (Amendment) Bill” are liable to struck down”, Justice Khawaja further observed.
The judge further ruled that Parliament is not sovereign or supreme in the sense that there are no limitations on its power to amend the Constitution.“The limitations on Parliament are not only political but are borne out from the Constitution itself”, Justice Khawaja observed adding that the apex court has the power to judicially review a Constitutional Amendment passed by Parliament and to strike it down where appropriate. He further observed that Article 175A as amended by the nineteenth Amendment is not liable to be struck down as it does not transgress the limitations of parliamentary power to amend the Constitution.
The words “or a Constitution (Amendment) Bill” added in clause (1)(b) of Article 63A are liable to be struck down while the provisions of sub-clauses 6(c) and (e) of Article 51 of the Constitution are liable to be struck down, Justice Khawaja ruled.
He stated: “Article 51 of the Constitution was substantially amended by the eighteenth Amendment in respect of seats reserved for minorities. These amendments (reproduced below) have been challenged by Julius Salak, a member of the minority Christian community, in Constitution Petition No. 43 of 2010. He raised objections to sub-clauses 6(c) and (e) of Article 51 of the Constitution as amended by the eighteenth Amendment. These provisions, for ease of reference, are reproduced as under:- “Article 51. (1) There shall be three hundred and forty-two seats for members in the National Assembly, including seats reserved for women and non-Muslims.
(6) ……… (c) the constituency for all seats reserved for non-Muslims shall
be the whole country; (e) members to the seats reserved for non-Muslims shall be elected in accordance with law through proportional representation system of political parties. lists of candidates on the basis of total number of general seats won by each political party in the National Assembly:”
According to learned counsel, the provisions referred to above are liable to be struck down because the same are violative of three of the express commands of the people, firstly, that “adequate provisions shall be made to safeguard the legitimate interests of minorities …” secondly, that “the State shall exercise its powers and authority through the chosen representatives of the people” and thirdly, “that the principles of democracy shall be fully observed”.
Justice Khawaja ruled: “For the foregoing reasons, I would agree with learned counsel for the petitioner Julius Salak that the aforesaid provisions are liable to be struck down. Parliament may substitute these provisions if it so chooses, by such provisions which recognize the high degree of importance given to minorities and to the principles of democracy as explained in Part-I of this opinion. Similar considerations would be relevant for Article 106 of the Constitution also which deals with reserved seats for minorities in provincial Assemblies.
He said that our legal and constitutional history has amply demonstrated that laws can be made by Parliament which do not necessarily represent the aspirations of the people in the manner discussed earlier in this opinion. In the case of Mubashar Hassan vs. Federation of Pakistan (PLD 2010 SC 265), it was remarked that even so it is for Parliament (not the Judiciary) to make such 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, he observed adding that he had expressed his opinion in the said case that “what is good or bad for the people must be left to the elected representatives of the people, subject only to the limitations imposed by the Constitution”
The object of the present opinion is precisely to define such limits which constrain Parliament when it decides to amend the Constitution, Justice Khawaja said.
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”, Justice Khawaja observed adding that it is equally important to avoid basing our legal judgment on alien theories and philosophies, divorced from our own historical and Constitutional context.
He said, “Our search for answers to constitutional issues cannot afford to ignore the kernel within.”
Five other judges including Justice Qazi Faez Isa, Dost Muhammad Khan, Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry Ahmed and Justice Asif Saeed Khan Khosa also disagreed with the main judgment with dissenting notes.