A 17 judge bench of the Supreme Court of Pakistan (SC) on Wednesday by majority of 11 against 6 upheld the 21st amendment to the Constitution of Pakistan providing for the establishment of military courts in Pakistan. The Court by a comprehensive majority of 14 against 3 also dismissed petitions challenging the 18th amendment to the Constitution. The 17-judge bench was presided over by the Chief Justice of Pakistan Nasirul Mulk.
Pakistan’s Parliament had passed the 21st Amendment extending the jurisdiction of the Military Courts to try certain class of civilians after Taliban gunmen massacred 134 children at the Army Public School in Peshawar, last year.
Parliament’s move to create special courts had sparked concern amongst human rights activists and in April a group of lawyers had approached Pakistan’s Supreme Court challenging the said 21st constitutional amendment.
The 18th Amendment to the Constitution provided for the establishment of a judicial commission and prescribed a new procedure for the appointment of judges of superior courts.
However the Supreme Court vide an interim order reported as Nadeem Ahmed, Advocate v Federation of Pakistan (PLD 2010 SC 1165) referred the matter of appointment of judges back to Parliament for re-examination along with its proposals to enable it to re-examine it in terms of the suggestions made by the SC.
Later the Parliament brought the 19th Amendment by accepting almost all the proposals and incorporating in the Constitution as suggested by the Supreme Court.
Altogether a total of 31 constitutional petitions were taken up by the court, of which 16 petitions were regarding 18th Amendment, while the rest pertained to the 21st amendment.
The petitions challenging the 18th and 21st Amendments to the Constitution were clubbed and heard together as the two sets of cases involved a common constitutional question as to whether there are any limitations on the powers of the Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment?
The focus of this report will be essentially on the arguments canvassed on the basic structure doctrine (with reference to Indian case laws) and how the Court dealt with the same in its judgment.
The petitioners’ contention principally was that there are certain basic features of the Constitution which are unamendable and that notwithstanding ostensible conferment of unlimited power on the Parliament by clause (6) of Article 239 and ouster of jurisdiction of the Courts by clause (5) thereof, the Parliament is not empowered to bring about changes in the basic structure of the Constitution.
Mr. Hamid Khan Sr. ASC appearing on behalf of the Lahore High Court Bar Association (LHCBA) and the Lahore Bar Association made a comparison of the said Amendment in Article 239 with the amendments made through the 42nd Amendment in Article 368 of the Indian Constitution and contended that the purpose of the amendment was the same i.e. to oust the powers of the Supreme Court to call into question any amendments made in the Constitution; that the said 42nd Amendment of the Constitution of India was introduced to nullify the effects of annulment of constitutional amendments on the ground of them being violative of the basic structure in the cases of Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1641) and Indira Nehru Gandhi v. Shri Raj Narain (AIR 1975 SC 2299).
Among other decisions, the judgments rendered the Supreme Court of India in the cases of Advocates-On Record Association v. Union of India (AIR 1994 SC 268) and In Re: Presidential Reference (AIR 1999 SC 1) were relied on by Mr. Hamid Khan to contend that the judiciary had declared and affirmed the independence of Judiciary from Executive as necessary to ensure that the tendency of other organs of the state to overstep their Constitutional limitations remain under check.
Relying upon the basic structure theory, as developed and expounded upon by the Indian Supreme Court, learned Counsel argued that there is a basic structure to the Constitution of Pakistan as well, which has been affirmed by the Superior Judiciary of Pakistan in various cases. That the idea of basic structure prevents the power to amend from turning into power to destroy the Constitution. He submitted that the Doctrine of basic structure was an academic thesis introduced by Professor Dietrich Conrad, a German professor of Law, which was adopted by the Indian Supreme Court in Kesavananda Bharati (supra) and affirmed in later judgments.
He referred to the following Indian Supreme Court judgments in which Professor Conrad‘s theory of unamendable basic structure of the Constitution was followed in India:
Further by relying on comparative Constitutional analysis of Germany, Turkey, Austria, Romania and some other jurisdictions, Mr.Hamid Khan contended that power to amend the Constitution is limited across the globe. Applying the ‘Basic Structure Doctrine‘ to the Constitution of Pakistan he argued that the first instance of basic structure in Pakistan can be found in the case of Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486); that the said judgment was also quoted by the Indian Supreme Court in the case of Sajjan Singh v. The State of Rajasthan (supra) acknowledging the fundamental features of the Constitution.
Mr. Iftikhar Gillani, Sr. ASC, representing the Government of Khyber Pakhtunkhwa advanced the proposition of law that the Parliament‘s power of amendment of the Constitution was in the nature of ―Constituent Power‖, on which no limitations whatsoever could be placed; that had the framers of the Constitution intended it to be so, they would have placed such limitations themselves upon the powers of the parliament. In this context he also argued that when an Act of the Parliament amending the Constitution is passed, the Act becomes part of the Constitution; that all provisions of the Constitution are of equal importance and that Fundamental Rights have not been given any primacy over other provisions of the Constitution. While countering the contention that Parliament if left unchecked could go to any extreme in amending the Constitution, he argued that as the parliamentarians and political parties have to return to the people for seeking vote they will remain on guard not to make unpopular amendments. He further argued that there are about 32 Constitutions of the world where basic structure has been defined and laid down with precision and out of those 32 Constitutions only 6 have provisions limiting the power of parliament to amend the Constitution before the judgment in Kesavanda Bharati (supra); that limitations in rest of the Constitutions were introduced after the said judgment.
It was also contended by him that Parliament has both constituent and legislative powers; that the validity of a constitutional amendment cannot be made on the touchstone of fundamental rights; that constitutional amendment is not law within the meaning of Article 8 of the Constitution.
Mr. Khalid Anwar, Sr. ASC, representing the Federation of Pakistan presented arguments on both the 18th and 21st constitutional amendments mainly on the basic structure doctrine. He began by dividing basic structure doctrine into two mutually exclusive and distinctive parts: a) Basic Structure as a descriptive doctrine: It identifies provisions considered to be primary to the basic structure of the Constitution; b) Basic Structure as a prescriptive doctrine: It grants power to the Judiciary to strike down constitutional amendments which modify basic features of the Constitution. Basic structure as a prescriptive doctrine creates unamendable parts of the Constitution, which are to be protected from amendment by the Courts. 26. He argued that the basic structure prescriptive doctrine is at best an academic exercise; that theories cannot be equated with law as law has two distinct features i.e. clarity and its presence in the public domain as public knowledge; that basic structure of the Constitution has neither been clearly laid down by the Courts nor is it clearly present in the public domain.
Dilating upon the case law from the Indian jurisdiction on the application of the basic structure doctrine to constitutional amendments, Mr. Khalid Anwar submitted that the case of Kesavananda Bharati (supra) introduced a new type of judicial power, whereby the Courts of India have assumed jurisdiction over constitution amending power of the Parliament. That this jurisdiction, as assumed in the said Indian case, does not exist in Constitution of India or of Pakistan and it is an instance of self conferred power by the judiciary. This self-conferred power in operation and theory destroys the separation of powers as has been ordained in the Constitution. He contended that the search for basic structure by the Courts is basically an exercise in metaphysics whereby determination of the essence of the Constitution is attempted; that it is an indeterminate process and in this regard he referred to paragraph 668 of Indira Nehru Gandhi (supra) wherein the Court noted that ―…The theory of Basic Structure has to be considered in each individual case, not in the abstract, but in the context of the concrete problem…‖ That even Indian judiciary could not identify basic structure of the Indian Constitution with clarity and it could only identify various aspects forming basic structure of the Indian Constitution in various succeeding judgments. In the light of various judgments by Indian Supreme Court learned Counsel formulated that the basic structure of any Constitution is neither fixed nor permanent and cannot be discerned with clarity or fully discovered; that in order to keep the Constitution relevant to the changing times and as a living document it ought to be allowed to change; that there is always an element of subjectivity involved in determining basic structure of any Constitution which differs when different readings are put on it by different judges; that society and institutions develop over time and constitution require changes to keep up with the changing social and economic conditions.
Any attempt to take the Constitution back to its basic structure would be highly retrogressive as it would put appointment of judges back into the hands of the Executive, it was contended. Mr. Khalid Anwar submitted that Courts do not have the jurisdiction to subject Amendments to the Constitution to Judicial Review.
Mr. Abid S. Zuberi, ASC appearing for Sindh High Court Bar Association, Karachi through its Secretary argued that the military courts are against the basic structure or salient features of the Constitution and should hence be struck down. It was contended, the extension of the powers of military courts over the civilians abridges the fundamental right of access to justice; that independent court, independent procedure and right to engage counsel of choice are the essential elements of a fair judicial system, which are denied to those to be tried by the military courts.
Ms. Asma Jahangir, ASC representing Supreme Court Bar Association (SCBA) through Secretary submitted that the SCBA does not support the basic structure theory as a ground to strike down constitutional amendment.
Ms Asma Jahangir argued that the Courts of Pakistan have only identified basic features of the Constitution but have never struck down any constitutional amendment based upon such features or developed a theory of the basic structure of the Constitution. She cautioned that laying down a basic structure to the Constitution would open flood gates as all amendments to the Constitution after the 7th Amendment could be revisited. That Parliament should be held responsible for its actions in political forums and through political actions and not before the judiciary; that the theory of fear of what might happen should not be taken as a base for restricting the powers of the Parliament through identification of the basic structure by the Courts, as the Parliament at the end of the day is politically responsible to the people. With reference to the Indian case law on the basic Structure, she argued that it should not be followed blindly in Pakistan because of the following reasons:
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion observed that the fundamental issue in all these matters is the power of the Court to strike down a constitutional amendment and the grounds or the basis for the exercise of such power. “This question has remained the subject matter of cases before our Courts as well as in India and amendments to the Constitution have been challenged on the touchstone of the basic structure theory” the court said.
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion however added that “Of greater relevance for us however are the judgments of this Court starting from Fazlul Quader Chowdhry (supra). This particular case deserves discussion in some detail as it was cited as the first judgment in Pakistan and India to have recognized the salient features of the Constitution.” This case was cited by the Supreme Court of India in Sajjan Singh (supra) observing that the Supreme Court of Pakistan had ―held that franchise and form of government are fundamental features of a Constitution and the power conferred upon the President by the Constitution of Pakistan to remove difficulties does not extend to making an alteration in a fundamental feature of the Constitution.‖
Chief justice and Justice Iqbal Hameedur Rahman’s opinion refers to the decision in Zia-ur-Rehman case [(PLD 1973 SC 49)] which was the case in which the Pakistan Supreme Court for the first time considered the power of the Courts to strike down a Constitutional Amendment. The petitioners therein had challenged the validity of the Interim Constitution of 1972 and the competence of the National Assembly to frame such a Constitution.
Chief Justice Hamood ur Rehman, as he then was, writing for the Court held that: ―
“So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a 46 provision seeking to oust the jurisdiction of this Court”
Rejecting the argument of the learned Counsel for the petitioners in that case that higher laws of morality, political expediency, laws of nature etc should be employed to strike down the provisions of the Constitutional amendment, the Court held that: ―
“It is now necessary to examine as to whether any document other than the Constitution itself can be given a similar or higher status or whether the judiciary can, in the exercise of its judicial power, strike down any provision of the Constitution itself either, because, it is in conflict with the laws of God or of nature or of morality or some other solemn declaration which the people themselves may have adopted for indicating the form of Government wish to be established. I for my part cannot conceive a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its provisions ultra vires or void. This will be no part of its function of interpretation.”
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman observed that in Zia-ur-Rehman it was however laid down that the judicial review over Constitutional Amendments was only limited to considering if the proper procedure for introducing such amendment was followed and did not extend over the substantive parts of the amendment.
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion referred to the fact that in Abdul Wali Khan ((PLD 1976 SC 57) the Pakistan Supreme Court did not follow the arguments based upon the Indian judgments of Golak Nath (supra) and Kesavananda Bharati (supra) but followed and affirmed the principle in Zia-ur-Rahman‘s case that the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to the prescribed by the Constitution or is passed by a lesser number of votes than those specified in the Constitution.
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion made reference to an earlier decision of the Pakistan Supreme Court in Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) wherein after discussing series of Indian case law on the subject of basic structure in paragraphs 190 to 192, held that ―no provision of the Constitution can be ultra vires, because there is no touchstone outside the Constitution by which the validity of a provision of the Constitution can be judged.‖
Chief Justice Nasirul Mulk and Justice Iqbal Hameedur Rahman also said that in the case of Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738) it had been observed that “this Court has not declared any amendment in the Constitution as ultra vires on the ground that it was violative of the basic structure of the Constitution. In other words in Pakistan the above theory has not been accepted”
In Mahmood Khan Achakzai, wherein the Eighth Amendment to the Pakistan’s Constitution came under challenge, Mr. Justice Saleem Akhtar had in paragraphs 29 to 43 of his judgment referred to the case law from the Indian jurisdiction, starting from Kesavanda Bharati case up to Raghonathrao Ganpatrao v. Union of India (AIR 1993 SC 1267) and taking into account the jurisprudence on the question developed in Pakistan since the case of Zia-urRehman‘s held:
“34. It can thus be said that in Pakistan there is a consistent view from the very beginning that a provision of the Constitution cannot be struck down holding that it is violative of any prominent feature, characteristic or structure of the Constitution. The theory of basic structure has thus completely been rejected. However, as discussed hereunder every Constitution has its own characteristic and features which play important role in formulating the laws and interpreting the provisions of the Constitution. Such prominent features are found within the realm of the Constitution. It does not mean that I impliedly accept the theory of the basic structure of the Constitution. It has only been referred to illustrate that every Constitution has its own characteristics.”
Referring to clauses (5) and (6) of Article 239 of the Constitution the Hon‘ble Judge noted in the aforesaid case that
“However, there are factors which restrict the power of the Legislature to amend the Constitution. It is the moral or political sentiment, which binds the barriers of Legislature and forms Constitutional understanding. The pressure of public opinion is another factor which restricts and resists the unlimited power to amend the Constitution. In Pakistan although Article 239 confers unlimited power upon the Legislature, yet it cannot by sheer force of morality and public opinion make laws amending the Constitution in complete violation of the provisions of Islam. Nor can it convert democratic form in completely undemocratic one. Likewise by amendment Courts cannot be abolished which can perish only with the Constitution.”
In Pakistan Lawyers Forum where the Pakistan Supreme Court unequivocally refused to accept the argument of setting aside constitutional amendments on the touchstone of basic structure, referring to the cases of Mahmood Khan Achakzai and Zafar Ali Shah it was held that:
“The position adopted by the Indian Supreme Court in Kesvavananda Bharati case is not necessarily a doctrine, which can be applied unthinkingly to Pakistan. Pakistan has its own unique political history and its own unique judicial history. It has been the consistent position of this Court ever since it first enunciated the point in Zia ur Rahman's case that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by the appropriate political forum, not by the judiciary. That in the instant petitions this Court cannot abandon its well-settled jurisprudence.”
After thus surveying the authorities holding the field, Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion observed that “The above discussion leave one in no doubt that this Court has right from the 1973 case of Zia-ur-Rahman to Wukla Muhaz and Pakistan Lawyers Forum (supra) consistently held that the basic structure theory has been recognized only to the extent of identifying salient or fundamental features of our Constitution. However, the theory has never been accepted or applied as a ground for striking down amendment in the Constitution. The Court has consistently refused to follow the position taken by the Supreme Court of India on the subject.
Even in India there is no unanimity on the application of this doctrine. A detailed analysis of case law from the Indian jurisdiction is not required as that has been extensively undertaken by this Court in the cases of Fauji Foundation, Mahmood Khan Achakzai, Pakistan Lawyers Forum and Wukla Muhaz (supra) before holding that the peculiar Constitutional history and politics of India cannot be emulated in Pakistan unscrupulously.”
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman then proceeded to make a critical analysis of the history of the struggle and conflict between the judiciary and parliament in India necessitating the development of the basic structure doctrine, and said that the basic structure theory, developed by Professor Conrad, in the wake of the harrowing experience of the Nazi Germany, was adopted by the Courts of India as a tool to create jurisprudence for ensuring their supremacy over the Parliament. The struggle for supremacy between the judiciary and the parliament over interpretative finality over the Constitution has been sketched out in detail in the judgment of the Supreme Court which repays study.
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion refers to the fact that the theory of implied limitations on the powers of amendment by the Parliament was accepted in the case of Kesavananda Bharati when amendments to the Constitution weakening the right to property were challenged before the Court.
The later judgment in Indira Gandhi was pronounced during a period of emergency, when Constitutional amendment had been passed to help the then incumbent Prime Minister in her appeal, pending before the Supreme Court.
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion said “These judgments have been criticized for introducing uncertainties as the Parliament while amending the Constitution would not know as to whether the amendment would survive the test of basic features forming the basic structure of the Constitution. Kesavananda Bharati did not lay down with precision any of the basic features of the Constitution which were identified by the Court in the later cases of Indira Gandhi, Minerva Mills Ltd., Waman Rao, I.R. Coelho (supra) etc and have been listed by certain commentators on Indian Constitution to be 27 in number and growing in count. Even these identified basic features are very broad in nature and open to varied interpretation by the judiciary. The dissent in Kesavananda Bharati questions many of the assumptions forming the basis of laying down implied limitations on Parliament‘s powers to amend. One of the arguments forwarded was the ‗fear‘ theory, expressing distrust in the Parliament‘s unbridled powers of amendment, as it was contended that it may lead to complete abrogation or even repeal of the Constitution by it. This ‗fear‘ theory is based upon the appalling and sad history of the amendments introduced by the Nazi dictatorship of the Third Reich to the Constitution of the German Reich (Weimar Constitution) of 1919 through the Enabling Act of 1933 (Reference can be made to the following text for a theoretical account of the constitutional and legal history of Germany under the Nazi totalitarianship: ―State of Exception‖ by Giorgio Agamben).
Justice Chandrachud, who later became the Chief Justice of India, in his dissent argued against the fear theory in the following words: ―
“Counsel painted a lurid picture of the consequences which will ensue if a wide and untrammelled power is conceded to the Parliament to amend the Constitution. These consequences do not scare me. It is true that our confidence in the men of our choice cannot completely silence our fears for the safety of our rights. But in a democratic policy, people have the right to decide what they want and they can only express their will through their elected representatives in the hope and belief that the trust will not be abused. Trustees are not unknown to have committed breaches of trust but no one for that reason has abolished the institution of Trusts... The true sanction against such political crimes lies in the hearts and minds of men. It is there that the liberty is insured... If and when they realise the disaster brought by them upon themselves, they will snatch the Crown and scatter its jewels to the winds.”
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion pointed out that the position in India also differed from Pakistan as there was no jurisdiction ousting clause in the Constitution of India restricting the powers of the Parliament to amend the Constitution under Article 368 before the judgment in Kesavananda Bharati. It was only later, that to grant protection to constitutional amendments, that clause (4) was added to Article 368 through the Forty Second Constitutional Amendment, to oust the jurisdiction of the Courts from calling into question any amendment to the Constitution. The said clause was later held to be unconstitutional and void in Minerva Mills Ltd. whereas similar provisions in the Constitution of Pakistan i.e. clauses (5) and (6) of Article 239, introduced through the Eighth Amendment, remained unchallenged. Rather, the said Amendment as a whole has been held to be valid in the case of Mahmood Khan Achakzai.
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman said that the basic structure theory does not have any universal acceptance in comparative constitutional analysis and also has limitations as highlighted in dissenting notes of Kesavnanda Bharati. Ideas cannot be uncritically borrowed from foreign jurisdiction, without understanding the particular histories of their development or appreciating their consequences in the host jurisdiction, especially when our own jurisprudence on the said question has already been settled and for good reasons.
Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman’s opinion also held further that there is no divide between legislative powers‘ and constituent powers‘ in the Constitution of Pakistan. Parliament under the Constitutional structure of Pakistan has both legislative and constitutive powers as has been held by Justice Saeed-uz-Zaman Siddiqui in Wukla Muhaz in the following words: ―
“…Parliament in Pakistan exercises ordinary legislative as well as constituent power. The Parliament in exercise of its ordinary legislative power approves or passes Acts and Legislations in respect of items enumerated in the two legislative lists in the Fourth Schedule of the Constitution, while in exercise of its constituent power it can amend the Constitution.”
Moving on to the issue whether the Court has jurisdiction at all to strike down an amendment on any ground whatsoever, the Pakistan SC answered the issue holding that the 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,” the SC said
In holding so the SC referred to, and relied on the opinion of Justice Saeed-uz-Zaman Siddiqui in Wukla Muhaz wherein he had said:
The power to amend the Constitution conferred on the Parliament under Articles 238 and 239 of the Constitution is in the nature of a constituent power of the Parliament. Therefore, a Bill passed by the Parliament in exercise of its power under Articles 238 and 239 of the Constitution amending the Constitution though described as an "Act" would not be subject to the same limitations as are applicable to an "Act" passed by the Parliament in exercise of its ordinary legislative power. As soon as an Act amending the Constitution is passed in accordance with the provisions of Article 239 of the Constitution and the Act receives the assent of the President as provided in the Constitution, 81 the amendment becomes an integral part of the Constitution. It is a well settled rule of interpretation that all provisions in the Constitution have equal status unless the Constitution itself provides that some of its provisions will have precedence or primacy over the other. Therefore, an amended or a new provision inserted in the Constitution as a result of the, process of amendment prescribed in the Constitution, is not a "law" within the contemplation of Article 8 of the Constitution and as such. the validity of the amended or newly introduced provision in the Constitution cannot be tested on the touchstone of Fundamental Rights contained in Part II, Chapter 1-of the Constitution.”
Accordingly Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman ruled that 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.
They further said that as it 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. It however clarified that 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
All petitions were accordingly dismissed. Justice Mian Saqib Nisar concurred with the views of Chief justice Nasirul Mulk and Justice Iqbal Hameedur Rahman. He posed the question in his separate opinion: “ Where should the amending power vest: in the hands of an unelected judiciary even though acting in good faith, or the chosen representatives of the people?” and answered it by saying “As I hope is made clear by what has been said above, my answer is: the latter and not the former.”
However 8 judges of the Pak SC, namely Justices Anwar Zaheer Jamali, Sarmad Jalal Osmany, Amir Hani Muslim, Gulzar Ahmed, Sh. Azmat Saeed, Mushir Alam, Umar Ata Bandial and Maqbool Baqar delivered a common judgment holding that the Constitution contains a scheme reflecting its Salient Features which define the Constitution. Such Salient Features are obvious and self evident upon a harmonious and wholistic interpretation of the Constitution. In an effort to discover such Salient Features material outside the Constitution cannot be safely relied upon.
The Salient Features as are ascertainable from the Constitution including Democracy, Parliamentary Form of Government and Independence of the Judiciary.
The 8 judges said that the Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any Constitutional Amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.
However they held that the provisions of the 21st Constitutional Amendment as such are intra vires the Constitution as the enlargement of the jurisdiction of such forum is subject to due compliance with an ascertainable criteria constituting a valid classification having nexus with the defence of Pakistan and does not abrogate, repeal, or substantively alter the Salient Features of the Constitution.
Justice Sarmad Jalal Osmany and Justice Umar Ata Bandial, concurred with the judgment of Azmat Saeed and 7 other judges as aforesaid. Justice Sarmad Jalal Osmany said in his concurring judgment “any amendment to the Constitution which would deny the people of this country their freedom per their fundamental rights or the form of Government which they had chosen or the independence of the judiciary could never be condoned.”
Justice Jawwad S. Khawaja also said that it is essential to strike down the 21st amendment as Parliament is not sovereign as its power to amend the Constitution is constrained by limitations which are clear from the reading of the Constitution as a whole. Secondly, these limitations are not only political but are subject to judicial review and, as a consequence, this Court has the power to strike down a Constitutional amendment which transgresses these limits.
A law or amendment which contradicts the principles of democracy or conflicts with the independence of the judiciary cannot be part of the powers of elected representatives, read the dissenting note.
Justice Asif Saeed Khan Khosa in his separate opinion also rejected the doctrine of basic structure. He said he was not “persuaded to accept the academic theory of basic features or basic structure of the Constitution as conferring jurisdiction upon this Court for striking down an amendment of the Constitution.”
He declared “The Constitution Petitions assailing the Constitution (Twenty-first Amendment) Act (Act I of 2015) and the Pakistan Army (Amendment) Act (Act II of 2015) are partially allowed and the Pakistan Army (Amendment) Act (Act II of 2015) is declared to be unconstitutional, without lawful authority and of no legal effect. As a consequence of this declaration all the trials conducted and the appeals decided by the military courts deriving authority from the Pakistan Army (Amendment) Act (Act II of 2015) are to be treated as non est and all the judgments delivered by invoking that law are rendered incapable of implementation and execution.”
Justice Ejaz Afzal Khan and Justice Ijaz Ahmed Chaudhry both held that the Court has “jurisdiction to examine the vires of any amendment in the Constitution and annul it, if it impairs, undermines or alters any of the parts forming basic structure of the Constitution and that clauses 5 and 6 of Article 239 of the Constitution cannot curtail such power and jurisdiction of this Court.” They further held that “The Constitution (Twenty First Amendment) Act, 2015 impairing, undermining and altering the parts forming the basic structure of the Constitution is ultra vires and thus non-est.”
Justice Dost Muhammad Khan held that “notwithstanding the words used in Article 239(5) and (6), the Parliament has no authority to reverse the process of independence of Judiciary, which has attained finality” and “The same is against the will of the people and the entire scheme of the Constitution based on trichotomy of powers, the equal division thereof, provided therein.” He further held: “the 21st Constitutional amendment inserting a proviso in Article 175 and amendment in the Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 and all subsequent amendments, made through ordinary legislation are declared null and void being unconstitutional and shall be deleted from the Constitution as a whole.” He also held : “All the proceedings, inquiries, trials, investigations, and convictions as well sentences recorded by the military courts so established under the 21st amendment are declared illegal and unconstitutional.”
Justice Qazi Faez Isa agreed with Justice Jawwad Khawaja saying that he was complete agreement with his opinion.
In view of the respective opinions recorded above, the Supreme Court of Pakistan by a majority of 13 to 04 held the Constitution Petitions to be maintainable. However, by a majority of 14 to 03 the Constitution Petitions challenging the Constitution (Eighteenth Amendment) Act (Act X of 2010) were dismissed, while by a majority of 11 to 06 the Constitution Petitions challenging the Constitution (Twenty-first Amendment) Act (Act I of 2015) and the Pakistan Army (Amendment) Act (Act II of 2015) were dismissed.
Read the Judgment here.