Per Irshad Hassan Khan, J
(a) Constitution of Pakistan (1973) Fourth Sched
As to the plea that paragraph (6) to Article 63A of the Constitution excludes the judicial review of the Courts and militates against Item NO. 55 of the Federal Legislative List, which envisages that the jurisdiction of the Supreme Court could not be curtailed, it may be observed that Item No. 55 in the federal Legislative List applies to ordinary legislative powers and not to Constitutional amendment. Clause (2) of Article 175 of the Constitution itself provides that no Court shall have jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Nevertheless independence of Judiciary which is guaranteed by the Objectives Resolution which is now the substantive part of the Constitution cannot be abridged or abrogated. (p. 1392)YY & ZZ
Per Raja Afrasiab Khan, J
(b) Constitution of Pakistan (1973) Arts. 4, 5, 9, 11, 14 & 25
In case, people of the State of Jammu and Kashmir decide to accede to Pakistan the relationship between Pakistan and that State shall have to be determined in accordance with the wishes of the people of that State. Pakistan is the champion for the cause the liberation of the people of Jammu and Kashmir primarily on the basis of two-nation theory. In these circumstance, the Parliament of Pakistan shall not be competent to change/amend the aforesaid provisions of the Constitution for the reason that, in case, it is allowed to do so, the very foundation of Pakistan shall altogether be shaken. The whole superstructure having been raised on the strength of Pakistan Resolution adopted on 23rd of March, 1940 may collapse like a house of cards. Apart from the above, Article 3 has forbidden all forms of exploitation. To enjoy the protection of law and to be treated in accordance with law is bound to be loyal to the State under Article 5. Our Constitution has given guarantee under Article 9 that no citizen shall be deprived of his life or liberty save in accordance with law. IN any form, slavery and forced labour have been forbidden under Article 11. The dignity of man, of course, subject to law and the privacy of home, shall be inviolable under Article 14. This right that all are equal before law has been given to all citizens on the basis of Article 25. These provisions alongwith the above noted Islamic provisions are the very foundation on which the Constitutional structure has been raised. In my humble view, the Parliament has no powers to repeal or alter these provisions because of their importance, especially, keeping in view the background of Pakistan Movement and thinking on human rights in the modern world. (p. 1423) JJ
(c) Constitution of Pakistan Arts. 16, 17 & 19–
Now coming to the impugned amendment, I hold the view that it shall help the democratic system to run smoothly and successfully. In the party meetings, all the members are free to discuss their views over the issues which are the subject of such meetings. However, once, after full debates/discussions, a decision is taken by majority of the members, it shall bind them. It may be stated that the party Head has to honour the views of the majority while taking the decision on the crucial issues of national importance. In my view, under the impugned amendment, the party Head has not been permitted to act like a dictator. At any rate final decision is to be taken by the party Head after due compliance of the procedure laid down in the amendment. I, therefore, do not think that the amendment shall, in any way, offend the provisions of Articles 16, 17 and 19.
Once a mandate is given by the majority of the Members on an issue in a free and conductive atmosphere, it has to be complied with faithfully by all the Members. If such a decision is violated, then, of course, competent Authority in the political party may take action against the Member/Members who is/are proved to be guilty of violation of party discipline after hearing them. There is nothing to suggest that such a course shall violate the fundamental right of the members of the political party who are held to been the violators of the party discipline. It may be noticed that rules of democracy cannot be practised/acted upon for the welfare of the people without having complete recourse to discipline which is one of the famous catchwords of Quaid-e-Azam Muhammad Ali Jinnah i.e., Unity, Faith and Discipline. On these great sayings which are of utmost importance for the whole nation, the founder of Pakistan observed :
“Quaid-i-Azam Muhammad Ali Jinnah referring to a passage in the address of welcome presented by the Divisional Superintendent and officers of the North-Western Railway on December 28, 1947 which stated, ‘we beg to assure you that we shall follow you through sunshine and fire, said :
‘We are going through fire ; the sunshine has yet to come. But I have no doubt that with unity, faith and discipline we will not only remain the fifth largest State in the world but will compare with any nation of the world. Are you prepared to undergo the fire? You must make up your mind now. We must sink individualism and petty jealousies and make up our minds to serve the people with honesty and faithfulness. We are passing through a period of fear, danger and menace. We must have faith, unity and discipline.” (See 453 of the “Selected Speeches and Statements of the Quaid-i-Azam Muhammad Ali Jinnah” (1911-34 and 1947-48) by M. Rafique Afzal).
With these observations, I respectfully agree with the view expressed by the Hon’ble Chief Justice in the leading judgment. (p. 1423 & 1424 ) KK