The senior-most judges of the Supreme Court, Justice Mansoor Ali Shah and Justice Muneeb Akhtar have requested Chief Justice Yahya Afridi to present the case regarding the 26th Amendment to the full court bench this week. This has prompted some serious questions.
The first question is: Can a constitutional amendment be challenged in a court of law, and do any courts have the authority to hear such a petition?
The answer is clear and unambiguous: a constitutional amendment cannot be challenged in any court.
In Chapter 11 of the Constitution, sub-clause 5 of Article 239 provides: “No amendment of the Constitution shall be called in question in any court on any ground whatsoever.”
It is pertinent to mention here that this prohibition was not included in the Constitution through the 26th Amendment; it has been there for a long.
An exceptional provision is articulated in the Constitution regarding this matter. Subsection 6 delineates: “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 by way of addition, modification or repeal any of the provisions of the Constitution.”
The doctrine of precedent has its own history, and its boundaries evolve as circumstances change.
Should there be any ambiguity even after this explanation in the Constitution? It’s important to remember that during the 25th Constitutional Amendment, Chief Justice Nasir-ul-Mulk held the view that no constitutional amendment can be challenged in any court of law on any ground whatsoever.
Some quarters believe that if Parliament undermines the basic structure of the Constitution through any amendment, the Supreme Court has the authority to annul it. However, the question arises: where in the Constitution is the basic structure defined? Does the Constitution explicitly mention or explain what constitutes its basic structure?
For example, Article 7-B of the Constitution of Bangladesh defines the basic structure of the Constitution explicitly. Is there a similar provision in the Constitution of Pakistan?
Can the court, in the name of interpretation, put something in the constitution that is not written by the people’s representatives sitting in the parliament? Can it eliminate anything from the Constitution? Is the court considered a constitutional entity or a supra-constitutional one?
Who creates the Constitution? It is the people, through their representatives. If the representatives of the people wish to add something new to the Constitution, what rules could prevent them from doing so?
Back in 1973, the people made a decision through their representatives. Is there any restriction on amending that decision through the representatives of the people today?
Is there anything written in the Constitution that states that Parliament’s right to amend the Constitution is subject to the judiciary’s permission?
Does the Constitution designate a role for a “Protector of the Constitution” within the Judiciary?
The legislative authority of Parliament is subject to the principles enshrined in the Constitution, which means that legislation may be invalidated if it contravenes constitutional provisions. However, the Constitution explicitly states that Parliament possesses the power to amend the Constitution without restraint, provided that such amendments receive a two-thirds majority vote. This requirement for a supermajority represents the only procedural constraint imposed on Parliament regarding constitutional amendments.
Some precedents are being cited to justify that the Supreme Court has the authority to review constitutional amendments and the power to nullify them. The question arises: Can a clear provision of the Constitution be nullified by a judicial decision? If so, is this practice constitutionally valid?
Can any provision of the Constitution be suspended, held in abeyance, or nullified by anyone other than Parliament? This question is important because there have been suspicions within Parliament itself that the Constitution is being “rewritten” by the judiciary rather than by Parliament.
The doctrine of precedent has its own history, and its boundaries evolve as circumstances change. Shouldn’t the Law and Justice Commission conduct a thorough examination of all judicial decisions, considering the contexts in which they were made? They should evaluate how closely these decisions align with the Constitution. This study might necessitate amending the Constitution to clarify which aspects of precedent law are valid and which are not.
There is also a question of whether judges should insist on the early hearing of any petition. The petitioner can request this, but can and should a judge?
Additionally, here is also a question of how can the Full Court address any constitutional matter instead of the Constitution Bench.
The final question (for this read) is whether a committee established under the Practice and Procedure Act can supersede the constitutional provision.
The writer is a lawyer and author based in Islamabad. He tweets @m_asifmahmood.