Supreme Court ruling on amendments today

Judgment will determine answers regarding trichotomy of powers

ISLAMABAD:

All eyes are on the Supreme Court whose 17-judge full bench will announce today a landmark judgment on a slew of petitions against the 18th and 21st constitutional amendments.

The legal experts believe that today’s judgment is very significant in the judicial history, as it will determine answers to vital questions regarding powers of the three pillars of state – parliament, judiciary and executive. The historic judgment is expected to be authored by Chief Justice Nasirul Mulk, who is retiring on August 17.

A three-judge bench on January 28, 2015 accepted pleas against 21st Constitutional amendment for regular hearing and sought concise statements from federal and provincial governments.

Read: SC reserves ruling on 18th, 21st amendments

Later on, a 17-judge full court of the Supreme Court, headed by Chief Justice Nasirul Mulk, clubbed the 18th and 21st constitutional amendment cases and heard the arguments for several weeks.

During lengthy legal battle the Supreme Court examined petitions challenging the procedure of judges appointment under the 18th Amendment and the establishment of military courts under the 21st Amendment to try militants in the wake of last year’s bloody Peshawar school rampage

The full court on June 26 reserved its ruling on the case. A total of 35 constitutional petitions were before the court of which 20 challenged the 18th amendment and 15 challenged the 21st amendment.

After intense legal wrangling, the apex court is expected to announce ruling on three questions: (i) whether the Constitution has a basic structure or not; (ii) if it has a basic structure then whether a constitutional amendment can be struck down on the basis of it; and (iii) whether the parliament has the power to alter the basic structure of the Constitution.

Talking to The Express Tribune, SCBA counsel Kamran Murtaza said the ruling on 21st constitutional amendment will be critical, wherein the top court may consider four options.

“Firstly, it may strike down the recent amendments, which seems impossible. Secondly, it may refer back to parliament the matter of establishment of military courts with reservations. Thirdly, it may dismiss petitions against both amendments. Fourthly, it may enlarge the jurisdiction of Article 199 against the military courts verdict and get the power to review the military courts’ verdicts on the basis of mala fide,” he said.

However, he said, if the SC adopts third option and dismisses the petitions against the establishment of military courts then a few judges may issue dissenting notes.

During the proceedings of case, visible division was witnessed among judges regarding the basic structure theory and powers of parliament and the Supreme Court; therefore, dissenting voices may be noticed in the ruling. A lawyer, Chaudhry Faisal Hussain, said it is a milestone case in the judicial history of Pakistan, wherein the SC is going to settle down some core issues once and for all.

Read: SC to announce ruling on establishment of military courts tomorrow

The top court on April 15 ordered a stay on execution of six militants convicted by military courts, after a petition seeking a halt to the implementation of death sentences awarded by military courts was filed by the SCBA.

Published in The Express Tribune, August 5^th, 2015.