Daily Times

Lahore High Court Bar Association, Pakistan Tehrik-e-Insaaf (PTI), Jamaat Islami (JI) and a lawyer from Malakand Muhammad Anas have challenged the 26th Amendment in the Supreme Court of Pakistan contending that it vitiated the basic structure of the constitution which was a forbidden area for the parliament. A similar petition has been filed before the Sindh High Court by a lawyer named Illahi Bux requesting the SHC to strike down various provisions of the amendment for being contrary to the principle of judicial independence and separation of powers.

These petitions probably have been filed in the light of the full court decision of SC in 2015 when it heard petitions challenging 18th and 21st amendments which were pending since 2010. Although the court dismissed petitions against Eighteenth Amendment by 14-3 majority and those against 21st Amendment by 11-6 majority but 9 out of 13 judges maintained that parliament’s powers to amend the Constitution were limited, and it was for the SC which was a guardian of the constitution to determine those limitations and if those limits were crossed to strike down the amendment. They coined the concept of ‘Basic Structure’.

However, four judges including chief justice Nasir-ul-Mulk, Justice Iqbal Hameedur Rehman, justice Asif Saeed Khosa, and justice Saqib Nisar rejected any limitations on parliament’s power to amend the Constitution quashing the doctrine of ‘basic structure’. They were right on money to understand the spirit and thought behind absolute power of the parliament to amend any provision of the constitution.

When the constitution says that the parliament can amend any provision of the constitution it also implies that the parliament can also change its fundamental structure.

To avoid making the article lengthy I will mention the views of only two judges in this regard. Justice Saqib Nisar stated “Matters of governance must be decided by the chosen representatives of the people, and should not be left at the “mercy of the collective wisdom of unelected judges”, who “are the least accountable branch in Pakistan. The “basic structure” doctrine, as adopted by the Supreme Court in India, is a vehicle for judicial aggrandizement of power at the expense of the elected representatives of the people”.

Justice Asif Saeed Khosa argued “Even if the preamble and salient features of the Constitution expressed the will of a past generation then why should the Supreme Court hold future generation hostage to it? Surely, if at some future stage the people of this country have a change of heart or mind… then the will of the people will have its way and the aspirations of yore or yesteryears may not be able to shackle it”. These minority views are jurisprudentially and constitutionally far more convincing than the majority’s opinion regarding limitations on powers of the parliament.

Remember when the SC took up petitions against 18th and 21st amendments the judicial activism was at its peak. Judges were in assertive mode and as rightly pointed out by Justice Saqib Nisar the doctrine of ‘basic structure’ was a vehicle for judicial aggrandizement at the expense of the elected representatives of the people.

Now in response to the petitions against 26th amendment, the two members of the committee responsible for fixing cases and forming benches under the Supreme Court Practice and Procedure Act Justice Mansoor Ali Shah and Justice Muneeb Akhtar wrote a letter to the CJ on 31st October stating that the committee has decided to hear these petitions in a full court with initial hearing on November 4. They made this decision in a private meeting in Justice Muneeb’s chamber. After receiving no response to their decision by CJ they sent a second letter to him expressing concern over delay and highlighting the urgency of the matter which in their view had not only impacted judicial authority but also public confidence in the legal process. They maintained that the decision still stood and needed to be implemented immediately.

It is really strange and mind-boggling to note that they made this decision in a private meeting without the participation of the CJ who is head of the committee. As such it lacks legal legitimacy for violating the procedure laid down in the relevant legislation. However, since in the meantime another amendment has been made in the Supreme Court Practices and Procedure Act changing the formulation of the committee which says that the committee will comprise the Chief Justice, the most senior judge of SC and the most senior judge of the constitutional benches, Justice Muneeb is no more member of that committee and the decision on fixing the petitions or otherwise will have to be taken by the reshuffled committee. Another new factor in this regard is that the issue being a constitutional matter will now have to be placed before the newly constituted constitutional bench.

As far as the question whether the SC can review the amendments and even nullify them or not we will have to look at what the constitution says in this regard. Article 239(5) and (6) expressly and unequivocally state “No amendment of the Constitution shall be called in question in any court on any ground whatsoever. For the removal of doubt, it is hereby declared that there is no limitation whatsoever on the power of the Majlis-i-Shoora (parliament) to amend any of the provisions of the Constitution”. When the constitution says that the parliament can amend any provision of the constitution it also implies that the parliament can also change its fundamental structure.

Article 239(5) and (6) of the constitution vesting absolute and unchallengeable power in the parliament to amend any provision of the constitution is very logical from the perspective of bringing changes in the constitution to deal with new challenges and emerging ground realities. It is because of this rationale that every written constitution makes provision for amending the constitution by the parliament. Accordingly, so far 26 amendments have been made in the constitution of Pakistan. The parliament is the creator of constitution which reflects the will of the people. When this constitution was framed there was a general consensus that Pakistan needed a parliamentary system of government. The parliament also determined fundamental rights as well as the principle of trichotomy of powers. As regards making amendments in the constitution I will go with remarks of Justice Asif Saeed Khosa regarding absolute power of parliament to amend any clause or article of the constitution in conformity with the will of the people.

So When the constitution categorically says that there is no limitation on the power of the parliament to amend any of its provisions and it cannot be challenged in any court of law on any ground, the courts must uphold it by refraining from entertaining any petition against any amendment or condescending to give a different meaning to the relevant Article. Being custodian of the constitution means strict adherence to it.

The writer is a former diplomat and freelance columnist.