Supreme Court can't rewrite Constitution; detailed judgement on 17th Amendment issued: Apex Court

The Supreme Court on Friday released its detailed judgement on the constitutional petitions challenging 17th Amendment, and holding of dual offices, simultaneously, by President General Pervez Musharraf. The 60-page judgement, authored by Chief Justice Nazim Hussain Siddiqui, held that the issue as to whether or not amendments to the Constitution made through the LFO were within the competence of the then Chief Executive has now become academic with the passage of the 17th Amendment. And, the amendments made to the Constitution through the LFO have been left unchanged by the 17th Amendment.
These have been specifically validated and are now to be examined, not with respect to the competence of the Chief Executive, but with respect to the constituent powers of the Parliament.
The judgement said that the argument that General Pervez Musharraf acted in violation of Syed Zafar Ali Shah's case is misconceived for the reason that it ignores all the constitutional developments in Pakistan over the past two years.
It said the elections were held to the National Assembly and provincial assemblies as per schedule given by the apex court in Zafar Ali Shah case.
In response of arguments that no democracy can exist in Pakistan unless the Prime Minister has complete and undiluted control over the armed forces, the judgement said it can be done only by amending the Constitution and for that Parliament is the appropriate forum, instead of the Supreme Court.
The judgement said that re-writing the Constitution was not the function of the apex court.
Citing several judgements of the SC, the judgement said that General Pervez Musharraf was clearly authorised to hold elections. Indeed, he was under obligation to do so by virtue of the judgement in Syed Zafar Ali Shah case.
The issue before the SC does not relate to the competence of General Musharraf as the Chief Executive to make constitutional amendments but to the competence of a duly elected parliament to make constitutional choices, the verdict said.
The LFO gave the President power to dissolve the National Assembly if the government could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate became necessary.
However the 17th amendment now makes its incumbent on the President, or on the Governors, as the case may be, to refer the matter to the SC within 15 days after such dissolution of the Parliament and provincial assemblies, the verdict said.
It said that present constitutional structure rests on the foundation of the 17th amendment. Without it the civilian rule may not have been possible.
By striking down any one or more of the provisions of the 17th amendment, SC will only destroy the entire system prevailing now, the detailed verdict added.
It said that the government is functioning in accordance with the Constitution and, if the petition is accepted and the 17th amendment (is) struck down, this entire constitutional edifice will collapse.
The President, Prime Minister, Governors, Chief Ministers, Parliamentarians, Members of the provincial assemblies, three Services Chiefs, and Judges of the superior judiciary appointed by the President, all will cease to hold office at once, and the government of the country will cease to function and total anarchy will prevail.
In short, striking down the 17th amendment would invite chaos and create a constitutional crisis. Thus the SC must allow the government to function, and the institutions to gain strength and mature with time, the judgement added.
It said if the petitioners have a grievance, their remedy lies with the parliament and failing that in the court of the people and not with the court of law.
The SC reiterated that it has repeatedly been held in numerous cases that the apex court does not have the jurisdiction to strike down provisions of the Constitution on substantive grounds.
The verdict said that 'Another Office Act' was not liable to be struck down as ultra vires of Article 43 of the Constitution.
The SC is, and always been, the judge of what is constitutional, but not of what is wise or good, the verdict clarified.
The judgement said: "The petitioners also submitted that it was imperative to take action against the President under Article 6 of the Constitution, because under Section 3 of the High Treason Act 1973, no court can examine a charge on grounds of treason unless a reference is forwarded to the court by the President, which in this case is not possible.
It, however, noted that Section 3 ibid does not require a reference from the President but this duty has been assigned to the Federal Government and this provision remains in its original form enacted.
The petitions challenging the 17th amendment and holding of dual offices, simultaneously, by President General Musharraf were filed by Pakistan Lawyers Forum, Moulvi Iqbal Haider, Watan Party and Communist Party.
The petitions were dismissed on April 13, 2005, by a five-member 'larger bench' of the Supreme Court comprising Chief Justice Nazim Husain Siddiqui, Justice Iftikhar Muhammad Chaudhry, Justice Javed Iqbal, Justice Abdul Hameed Dogar and Justice Faqir Muhammad Khokhar.