Sat. Sep 19th, 2020

Power of judicial review by the Supreme Court is not ousted by the virtue of Article 239 (5) of the Constitution of Islamic Republic of Pakistan

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Supreme Court of Pakistan: A 17 Judge Bench
of the Court headed by Nasir-ul-Mulk, C.J., while deciding the question that
whether there are any limitations on the power of the Parliament to amend the
Constitution and whether the Courts have the jurisdiction to strike down a
constitutional amendment, held that the Supreme Court’s jurisdiction to examine
a constitutional amendment is not ousted by the virtue of Article 239 (5) of
the Constitution of the Islamic Republic of Pakistan, 1973. The Court further
laid down certain rules that need to be particularly considered for the interpretation
of the Constitution which are as follows-The
Parliament cannot amend the Constitution in such a way that contravenes the
provisions of the Preamble to the Constitution, and that may abolish, take away
or abridge the fundamental rights.The
Constitution has to be read in its entirety and effect has to be given to every
clause, paragraph and article. The
doctrine of separation of powers that is enshrined in the Constitution and the
Preamble has to be kept in mind by the Courts while interpreting the
constitution.

In the present group of petitions the
validity of the 18th and 21st amendment to the
Constitution of Pakistan was challenged. Hamid Khan, appearing on behalf of the
petitioners contended that there are certain Basic Features of the Constitution
that cannot be amended. Referring to the decision of the Supreme Court of India
in Kesavanand Bharti v. State of Kerala, (1973) 4 SCC 225, the
counsel contended that the Parliament does not have absolute power to amend the
Basic structure of the Constitution. On the contrary, Iftikhar Gilani arguing
for the respondents contended that the power of the Parliament to amend the
Constitution is its ‘constituent power’ without any limitations.

The Court with the ratio of 13:4 upheld
the maintainability of the petitions. The Court with regard to the
establishment of Military Courts observed that, “the military cannot conduct
criminal trials of civilians because judicial power can only be exercised by
the Judiciary”. The Court ordered the that the setting aside of convictions,
sentences passed by the military pursuant to the Pakistan Army Act, 1952, the
Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the
Protection of Pakistan Act, 2014 and the cases are to be adjudicated afresh by
the Anti-Terrorism Courts. [District Bar
Association v. Federation of
Pakistan, Constitution Petition No. 12 of 2010, decided on 05.08.2015] 
Source: Legal news India

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