The Military Courts Case II

Nasir-ul-Mulk, C.J., wrote for himself and Rahman, J.

Article 239:

(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever.

(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.

[The opinion rejects the “basic structure” theory under which a court may invalidate even a constitutional amendment. It notes that the theory has been rejected in past Pakistani cases. The opinion also holds that the Objectives Resolution of 1949 does not trump the rest of the Constitution.]

65. . . . [N]otwithstanding the inclusion of Article 2A whereby the Objectives Resolution has been made a substantive part of the Constitution, it neither controls other provisions of the Constitution nor can other provisions of the Constitution be struck down on the ground that they come into conflict with it. The Objectives Resolution as substantive part of the Constitution can be used in interpretation of other provisions of the Constitution in case of doubt.

69 . . . [T]he powers conferred on this Court under Article 184(3) of the Constitution cannot be exercised to strike down any amendment in the Constitution even if it violates any of the fundamental rights. Such power has not been conferred on the Courts by any other provision of the Constitution. Rather, clause (5) of Article 239 in no ambiguous terms ousts the jurisdiction of all Courts to call into question any amendment. . . .  As jurisdiction of the Court has been clearly ousted from reviewing any amendments made by the Parliament to the Constitution, Courts cannot assume such jurisdiction upon itself by relying on any academic theories, doctrines or any other means of construing meaning of the Constitution.

73. To conclude, as held above, there are no limitations, express or implied on the powers of the Parliament to amend the Constitution and the amendments brought about in exercise of such power are not liable to be challenged on any ground whatsoever before any Court. As this Court lacks jurisdiction to strike down any amendment in the Constitution it is not necessary to examine the grounds on which the 18th and the 21st Amendments have been challenged. However, the decision to select and refer the case of any accused for trial under the Pakistan Army Act, 1952, as amended, and any order passed or decision taken or sentence awarded in such trial shall be subject to judicial review on the grounds of corum non judice, being without jurisdiction or suffering from mala fide. With this observation all the petitions are dismissed.