Minority judgement of Pak SC declares 21st Amendment, military courts unconstitutional

The 21st Amendment as well as the trials of the accused by the military courts have been declared illegal and unconstitutional in a minority judgement of six judges against the majority judgement of 11 judges of the Pakistan Supreme Court.

According to the Dawn, Justice Jawwad S. Khawaja held that the 21st Amendment was liable to be struck down since the Parliament was not a sovereign or a supreme body considering that there were no limitations on its power to amend the Constitution.

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.

Justice Asif Saeed Khosa, however, 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.

He did not accept the academic theory of the Basic Structure of the Constitution as conferring jurisdiction upon the Supreme Court to strike down an amendment of the Constitution and thus dismissed the petitions challenging the 18th Amendment.

The verdict regarding the 21st Amendment said that wrong policies made and followed during the long dictatorial rule and later unfortunately approved by the successive democratic governments had plunged the country into unmanageable crises wherein what is being witnessed is a war that has been waged against the state by the non-state actors based on their ill-perceived notions.

The 21st Amendment and all subsequent amendments made through ordinary legislation have been declared null and void 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 have also been declared illegal and unconstitutional.