SUPREMACY OF THE CONSTITUTION VERSUS SUPREMACY OF THE PARLIAMENT:
FINDING THE BASIC STRUCTURE OF CONSTITUTION OF PAKISTAN

By:
MAHAR AAMIR ABBAS HARRAL
Ph.D Scholar (UK)
&
MUHAMMAD RAHEEM AWAN,
Advocate

Abstract

The 16^th December 2014 dawned with a gloomy day in Pakistan when terrorists attacked on Army Public School Peshawar (“APS”); 145 people including 132 schoolchildren were martyred and 121 sustained serious blows. Following the APS attack the parliament unanimously passed twenty first amendment bill of the constitution on 6th January 2015 which received presidential assent on 7th January 2015. To setup Military Courts (“MCs) to try cases concerning heinous terrorist activities, the bill has amended Art. 175 and first schedule of the constitution. The MCs will perform parallel to conventional Courts and the amendment will die its natural death after lapse of two years under the sunset clause. The amendment has been challenged before the Supreme Court of Pakistan (“SCP”). Petitioners invoked the original jurisdiction of the SCP under Art. 184(3) Constitution contending that 21st amendment is conflicting with the basic structure of the constitution. Since matter is sub-judice, therefore, without touching the contents of the petition, merits of the case, constitutionality of the MCs and 21st amendment, this paper intends to find if Constitution of Pakistan ever had or have basic structure. The paper will examine the constitutional provisions on parliament's power and right to legislate and judicial precedents setting the position of Pakistani Courts on basic structure of the constitution.

Constitutional Amendment: Powers and Limitations of the Parliament

The legal debate on parliament's power to legislate and amend the constitution always seen to be surrounding the questions, Whether Pakistani legislature is free to legislate with its sweet will? If answer is affirmative, then controversy will be over. However, if answer is in negative then, what are the powers and limits of the parliament? Whether or not Constitution of Pakistan has its basic structure? If no, then there should not be any limits or restrictions upon parliament's right to legislate. However, if answer is confirmatory then, what are basic features of constitution?

The supreme law of the country, the constitution of Pakistan 1973 is the first and foremost primary legal source which could shed the light and provide guidance over this controversy. Part XI, Art. 238 and 239 of the constitution deal with the issues concerning to constitutional amendment. The Art. 239 (4, 5 & 6) is very significant which describes the authority and limitations of the parliament to amend the constitution. Sub-clause (4) imposes a limitation on the parliament's right to amend the constitution in relation with the altering the boundaries of any province whereas sub-clause (5) categorically restricts all the Courts to call into question any amendment on any ground whatsoever. Similarly, sub-clause (6) further clarifies the situation by stating that power of parliament to amend the constitution is without any sort of limitation and it can amend any provision of the constitution. The Art 249(5-6) provides;

239(5). No amendment of the Constitution shall be called in question in any Court on any ground whatsoever.

(6). 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 any of the provisions of the Constitution.

Literal construction of aforementioned provisions unambiguously demonstrates that, parliament can amend any provision of the constitution except provided in sub-clause (4). Clearly, except sub-clause (4), the simple construction of instant provision does not proscribe the parliament to amend any constitutional provisions including the powers of the superior judiciary or fundamental rights of the citizens or anything else, whatsoever. The dispute over literal meaning of the constitutional provision and parliament's right to legislate gave rise to the longstanding controversy before the apex Courts of the Pakistan.

The verdict of the SCP in Zia ur Rehman case[1] is an important judgment which provides basic principle and standpoint of the SCP since early days of the constitution. The Court held that, in the States having written constitution functions of the organs of the State are distributed and their powers are predetermined in the constitution. The Court is a creature of the constitution, neither has it claimed to be superior to constitution nor can it strike down any constitutional provision. The constitution is based on tricotomy of power and Courts derive their powers from the constitution therefore it will remain within the limits prescribed by the constitution. Court overruled the possibility to challenge constitutional amendment on the basis of “National Inspiration and Abstract Concept” if same is passed by the parliament in accordance with the constitutional stipulations.[2] The dictum has been relied by the Lahore High Court[3] (“LHC”) where it held that it settled principle of the law that Courts are conferred upon the jurisdiction to interpret the law but it does not have jurisdiction to assume the role of the policy maker. On the question of ousting the jurisdiction of the SCP, the Court concluded[4] in Saeed Ahmed Khan case that, it cannot strike down the constitutional amendment merely on the ground that same is promulgated to oust the jurisdiction of the Court.[5] The Court is only empowered to interpret such provision and identify its scope and nature in accordance with the established standards of interpretation.

The Saeed Ahmed case is significant in the context of the ousting the jurisdictions of the higher judiciary or in simple words curtailing their powers. Nevertheless, by interpreting the phrases mala fide, malice in fact, malice in law, excess or lack of jurisdiction and coram-non-judice[6] the instant judgment laid the foundation for the future Courts to re-examine this position on the touchstone of these facts. The SCP once again reaffirmed its position to revisit the constitutional amendment in Brig. (R) F.B. Ali case[7] stating that, the SCP cannot invalidate a law on some sort of ethical contention or on theoretical idea of law.

On the issue of judicial review and striking down the constitutional amendment, the standpoint of the apex Courts in Pakistan remained fairly constant for decades. The Court once again acknowledged its position in Wali Khan case[8] and held that, the Courts are not empowered to hold the constitutional amendment void or repugnant unless the constitution has been amended in sheer violation of the procedure prescribed in the constitution. In Wali Khan, the SCP for first time considered the Kesavananda Bharati case of the Indian Supreme Court (“ISC”) on basic structure theory[9] and rejected the same. In Kesavananda Bharati case the ISC held that constitutional provisions can be amended by the legislature save the basic structure and foundation of the constitutional remains unchanged which may consist, supremacy of the constitution, republican or democratic form of the government, secular and federal character of the constitution, separation of power between parliament, executive and the judiciary.[10]

In Dewan Textile Mills[11] the Karachi High Court (“KHC”) also pursued the line of the SCP. The KHC did not incline towards the challenge to the fourth amendment in the constitution on the ground of it being contrary to the basic structure theory. In Niaz A. Khan[12] KHC once again aligned its position with the precedents set by the SCP by rejecting the challenge to the seventh constitutional amendment.

The matter of constitutional amendment was again entertained by the SCP in Federation of Pakistan v. United Sugar Mills[13]. On the issue of the Fourth Amendment Act 1976 in the constitution, the Court once again reiterated the dictum of Zia ur Rahman and held that, the Court lacks jurisdiction and cannot review the constitutional provisions if it is adopted by the parliament following constitutional procedure. The Court does not have authority to revisit the constitutional 'instruments, amendments on the ground of competency or formal defect[14]. There are two significant aspects of the instant judgment: first, the SCP once again considered the judgment of the ISC, namely Kesavananda Bharati[15] where it had rejected the constitutional amendment in the Indian constitution relying on the basic structure theory. The second aspect of the case was, it directly related to the curtailment of the powers of the Courts by means of the fourth amendment in the constitution. The Court upheld the verdict in Zia ur Rahman and rejected both arguments. [16] It can be observed that almost every time parliament passed a constitutional amendment it was challenged before the higher judiciary of Pakistan. Like the KHC, the Peshawar High Court (“PHC”) also had to adjudicate the matter of constitutional amendment in Jehangir Iqbal Khan[17] Following the same long-standing view of the higher judiciary, the PHC rejected the challenge to the Fifth Amendment in the constitution.

The Fauji Foundation[18] is one of the most significant cases on the controversy of constitutional and parliamentary supremacy. On the question of limitations on the authority of the parliament to amend the constitution, the SCP considered the dictum laid down by the ISC in several cases. The SCP once again reaffirmed the position taken in Zia ur Rahman and United Sugar Mill. Moreover, the SCP overruled Darwesh M. Arbey[19], where on the issue of the seventh amendment in the constitution, the learned judge at LHC held that, Parliament is not sovereign to amend the constitution according to its wishes and can desire, 'much less than the basic structure of the constitution'. While overruling Darwaish Arbey, the Court held that, the '... amending power, unless it is restricted, can amend, vary, modify or repeal any provision of the constitution.'[20]

A deviation from the orthodox approach of the higher judicial hierarchy has been seen to be emerging slightly when Courts started considering the construction of phrases discussed in Saeed Ahmad as discussed above. Interpreting Art. 370(A) on affirmation of presidential orders, the Court in Pakistan v Ghulam Mustafa Khar observed[21] that, an ouster clause[22] does not preclude the jurisdiction of the Court where action under question is affected by the aforementioned phrases. Moving one step ahead of Saeed Ahmad case, the Court determined that to invoke its jurisdiction to decide the constitutionality of such amendments it is not necessary to distinguish 'malice in law' and 'malice in fact'. It was affirmed again in Pir Sabir Shah case[23], that despite the restriction on the Court's jurisdiction contained in said ouster clause, the Court has jurisdiction to review the proclamation order and declare it unconstitutional if it falls within the definition of 'without jurisdiction', 'mala fide' and 'coram non judice'.

Until now, it has been observed that, earlier Courts had a firm view that the constitution is based on the trichotomy of power theory and legislation is the prerogative of the parliament. Courts cannot invalidate a constitutional amendment on any ground whatsoever save for not adopting the procedure prescribed in the constitution. However, at a later stage, the Court slightly deviated from its firm view and asserted to have jurisdiction despite the ouster clause.

Another important judgment of the KHC regarding the abovementioned controversy is Mujeeb Pirzad. [24] The judgment in this case was upheld by the SCP by virtue of short order in Mahmood Khan Achakzai. [25] In this case, the eighth amendment in the constitution was under question; the Court held that, following the clear position of the superior Courts in many previous decades, the SCP cannot annul the constitutional amendment for the reasons that it conflicts with 'Objective Resolution, national aspirations' or with legal philosophical notions of basic structure. [26] The Court further reiterated that unless an amendment is adopted in procedural violation of the constitution, the Court cannot review the constitutional amendment on the basis of basic structure theory. Nonetheless, challenge to eighth amendment failed, but then the CJ[27] identified some basic features of the constitution which sowed the seed of judicial activism and supremacy of the constitution in Pakistan. Taking into account the appended preamble, the Objective Resolution contained in Art. 2A of the constitution, the SCP identified some salient features of the constitution, 'federalism and parliamentary form of government blended with Islamic provisions'. [28] He added that insertion of the Objective resolution demonstrates the will of the legislature to designate some salient features of the constitution. On the question of judicial review of parliament's right to amend the constitution he added that, 'there is a basic structure of the constitution which may not be amended by the parliament.' However, 'it could not answer with the touch of finality.'

Justice Raja Afrasiab and Justice Saleem Akhtar authored their separate judgment and followed the Zia ur Rahman position holding that, the constitution has predetermined the roles of all the organs of the State. It is not the duty of the adjudicator to call into question the wisdom of the legislature on any ground whatsoever including violation of basic structure unless the amendment is adopted in violation of the procedure prescribed in the constitution. Despite identifying some salient feature/basic structure of the constitution the SCP dismissed the petition and held that it does not have jurisdiction to annul the constitutional amendments.

In Wukla Mahaz[29] (Lawyers' Forum), the challenge to fourteenth amendment in the constitution failed and the Court rejected the contention that the amendment is in violation of the basic structure of the constitution. [30] Acknowledging the previous stand that there are basic features of the constitution, the Court held that, the instant case does not raise the question of basic structure. It will be correct to suggest that, Pakistan's firm position on supremacy of the parliament remained consistent for decades; however, on every occasion the SCP seems to be moving slightly from its long-standing position. In Zafar Ali Shah, [31] the SCP allowed the Army Chief/ Chief Executive[32] of the country to amend the constitution to run the affairs of the government, but the Court restrained him from making any sort of amendment in the basic feature of the constitution.

Just before the emergence of judicial activism in 2006 and prior to his removal in 2007, the then CJ Iftikhar Ahmad Chahdury dealt with basic structure theory in Pakistan Lawyers' Forum. [33] This time the seventeenth amendment in the constitution was under challenge on the ground of being contrary and conflicting with the basic structure. The five-member bench of the SCP re-examined the whole controversy and aligned with the previous precedents stating that, though the constitution does have certain salient features, the SCP lacks jurisdiction to annul constitutional provisions and amendments on substantive grounds. The Court further added that, there may be some restrictions on the parliament with regard to amending the basic structure, [34] but this issue is not open for judicial review; instead, is political in nature. Validity of constitutional amendment is to be judged by the people through standard parliamentary democratic process and fair general election and not by the Courts. [35] The SCP held that there is no justified reason to adopt Indian precedents on basic structure as a doctrine discussed above. The judgment is vital and significant in the sense that one of its authors, CJ Iftikhar Chaudhry, is deemed to be a flag-bearer and symbol of judicial activism in Pakistan. [36]

Controversy over the supremacy of the parliament and constitution reached its peak when several petitions were filed in the SCP under its original jurisdiction challenging the eighteenth amendment in the constitution. [37] It is pertinent to mention here that said amendment was unanimously passed by the parliament after the exercise of several years and several and long parliamentary meetings. Among several other provisions, Art. 175 A regarding appointment of the judges was said to be violative of the basic structure of the constitution as independence of the judiciary is one of the salient features of the constitution. The SCP headed by CJ Iftikhar Chaudhry, one of the authors of the Lawyers Forum case observed[38] that, the SCP has time and again acknowledged the salient features of the constitution. The SCP would refrain from giving its final verdict on the merits of the case at this stage, rather it would prefer to defer the matter for reconsideration of the parliament in accordance with the direction of the SCP. The SCP decided to take up the matter for final verdict at a later stage to insure the compliance of its recommendation to amend Art. 175A of the constitution following the Court's term in light of the concerns/ reservations expressed and observations/ suggestions. [39] Most significantly, the Court observed it is creature of the constitution which is based on the trichotomy of powers, and functions of all the organs of the State are pre-determined. Although the people being politically sovereign and trusty of the sacred constitution had not made the judges ultimate authority, however:

'They wanted the Judges to do right to all manner of people according to law, without fear or favour, affection or ill-will... Judicial independence is one of the core values of our Constitution because it is inextricably linked with the enforcement of fundamental rights [Article 184 (3) and Article 199 of the Constitution] and the rule of law. [40]

The Court emphasized the independence of the judiciary as one of the salient features of the constitution, hence appointment of the judges should be in line with the ideas of independence of the judiciary and trichotomy of power. On receiving the reference from the SCP, parliament followed the direction in its entirety and passed the nineteenth amendment adopting all the recommendations and observations of the SCP. By doing so, the parliament accepted the CJ and SCP's decisive role in the appointment of the judges in the higher judiciary. The way parliament acted in compliance of said reference clearly demonstrates that parliament was not unmindful of the fact that the SCP did not leave its recommendations to the wisdom of the parliament. It merely adjourned the proceedings and in the event of parliament's failure to comply with the direction in its entirety the SCP kept the right of final decision in its hand. Construction of observations made in paragraphs 8 to 10 discussed above regarding amendment of the Art. 175 of the constitution clearly indicate the SCP's intention to deviate from its long-standing position on constitutional amendments.

Conclusion

The above discussion reveals that the constitutional unambiguously provides rules on Parliament's autonomy to amend any provision of the constitution and restrictions upon the Courts to call such amendment into question. Phraseology of provisions discussed above especially sub-clause (6) is fairly clear enough and shows the will of the creators of the constitution to confer powers upon the parliamentarians to amend any provision of the constitution. Had they wanted to exclude or impose any limitations on parliament to amend the constitution they would have categorically mentioned it, as is seen in Art. 239(4).

It has been seen that the higher judiciary had firm view that the constitution follows the philosophy of trichotomy of power where legislation is the prerogative of the parliament. The parliament is free to amend, vary, modify or repeal any provision of the constitution save failure to adhere to procedure prescribed in the constitution or clearly restricted in the constitution e.g Art 239(4). Consequently, the higher judiciary including the SCP lacks jurisdiction to annul or invalidate constitutional amendment on ground of competency or formal defect being conflicting with Objective Resolution, national aspirations, legal philosophical notions of basic structure or any other ground whatsoever. This also includes ground to oust the jurisdiction of the apex Court or any other substantive ground.

The discussion has observed a slight move from the above discussed orthodox approach of the higher judiciary in Mahmood Khan Achakzai and later on Zafar Ali Shah cases whereby Courts identified some salient features of the constitution. Identifying these basic features has laid the foundation stone for apex Court to further move towards supremacy of the constitution. Moreover, The SCP by means of observation made in paragraphs 8 to 10 already discussed above conveyed its message to parliament that it would not be reluctant to overrule constitutional amendments and may follow the several times rejected basic structure theory. This reveals that if in the future the SCP feels uncomfortable on any constitutional amendment it is very likely to strike down the same being contrary and violative to the basic structure of the constitution. It is significant to mention here that Pakistan adheres to the strict principles of stare decisis which is embodied in Arts 189 & 201 of the constitution. The principle binds the subordinate Courts to follow the precedents set by the SCP and HCs involving the same facts. Therefore it has never been easy for the Courts to avoid such precedents. The Courts have to overrule, reverse or distinguish the previous judgment with the new one. Regardless of the fact that stare decisis is constitutional requirement everything is possible in Pakistan in the era of judicial activism. Consequently, it will be correct to suggest that in the light of the outcome of the eighteenth amendment case, any Act of parliament or constitutional amendment will be subject to judicial review and any attempt to oust the jurisdiction of the higher judiciary is unlikely to be sustained. Once it had been said, perhaps rightly, that, 'We are under the constitution, but the constitution is what the judges say it is'. [41]

Bibliography

The Constitution of Pakistan, 1973

Nadeem Ahmad v Federation of Pakistan the Supreme Court of Pakistan (original Jurisdiction) order dated 21st October 2010 in 18th amendment case <www.supremeCourt.gov.pk/web/page.asp?id=433>

Yasir Khan v. Vice-Chancellor, University of Punjab, Lahore [2005] YLR 177

Pakistan Lawyers Forum v Federation of Pakistan PLD [2005] SC 719, <www.supremeCourt.gov.pk/web/user_files/File/JR_Judgment_on_17th_Amendmend_and_Presi dents_Uniform_Case.pdf>

Zafar Ali Shah v Federation of Pakistan PLD [2000] SC 869 .

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Mujeeb Pirzada [1997] SCMR 232

Mehmood Khan Achakzai v Federation of Pakistan PLD [1997] SC 426.

Sabir Shah v Federation of Pakistan PLD [1994] SC 738

Federation of Pakistan and another v Malik Ghulam Mustafa Khan PLD [1989] SC 26, 46 & 48 head notes E & F.

The Fauji Foundation v Shamim ur Rehman PLD [1983] SC 457.

Darwesh M. Arbey v Federation of Pakistan PLD [1980] Lah. 684

Jehangir Iqbal Khan v Federation PLD [1979] Peshawar 67

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Niaz A Khan v Federation PLD [1977] Karachi 604, 648.

Federation of Pakistan v United Sugar Mills PLD [1977] SC 397.

Dewan Textile Mills v Federation PLD [1976] Karachi 1368

Islamic Republic of Pakistan v Abdul Wali Khan PLD [1976] SC 57

Brig (Retd) F.B. Ali and another PLD [1975] SC 506, 507, 528.

Federation of Pakistan v. Saeed Ahmed Khan, PLD [1974] SC 151

State v. Zia ur Rehman PLD [1973] SC 49

Kesavananda Bharati Sripadagalvaru v State of Kerala AIR [1973] SC 1461.

Muhammad R Awan 'judicial activism in Pakistan in commercial and constitutional matters: Let justice be done though the heavens fall' p. (1-28) Journal of International Criminal Justice Research Volume 1 — July, 2014 http://www.aabri.com/manuscripts/141803.pdf

Walter E. Williams, 'Liberty versus the Tyranny of Socialism : Controversial Essays'. P. 236: Charles Evans Hughes CJ of USA, 'Speech before the Chamber of Commerce, Elmira, New York 3 May 1907', published in Addresses and Papers of Charles Evans Hughes p 139

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[1]. State v. Zia-ur-Rehman PLD [1973] SC 49.

[2]. Ibid 1 P. 410.

[3]. Yasir Khan v. Vice-Chancellor, University of Punjab, Lahore [2005] YLR 177 Head note a http://pakistanconstitutionlaw.com/2005-ylr-177/

[4]. Federation of Pakistan v. Saeed Ahmed Khan, PLD [1974] SC 151 & 165 head note A.

[5]. Ibid 4 At P. 166.

[6]. Ibid At P. 170.

[7]. Brig (Retd) F.B. Ali and another PLD [1975] SC 506, 507, 528.

[8]. Islamic Republic of Pakistan v. Abdul Wali Khan PLD [1976] SC 57, 100.

[9]. Kesavananda Bharati Sripadagalvaru v. State of Kerala AIR [1973] SC 1461.

[10]. Ibid 9 Paragraph 316.

[11]. Dewan Textile Mills v. Federation PLD [1976] Karachi 1368.

[12]. Niaz A Khan v. Federation PLD [1977] Karachi 604, 648.

[13]. Federation of Pakistan v. United Sugar Mills PLD [1977] SC 397.

[14]. Ibid 13.

[15]. Ibid 9.

[16]. Federation of Pakistan v. United Sugar Mills, PLD [1977] SC 397, 410.

[17]. Jehangir Iqbal Khan v. Federation PLD [1979] Peshawar 67.

[18]. The Fauji Foundation v. Shamim-ur-Rehman PLD [1983] SC 457.

[19]. Darwesh M. Arbey v. Federation of Pakistan PLD [1980] Lah. 684.

[20]. Ibid 18.

[21]. Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD [1989] SC 26, 46 & 48 head notes E & F.

[22]. Constitution of Pakistan 1973 Art. 270-A (1, 2 & 4).

[23]. Sabir Shah v. Federation of Pakistan PLD [1994] SC 738, 765 head note C, 819 head note KK <http://pakistanconstitutionlaw.com/p-l-d-1994-SC-738/>

[24]. Mujeeb Pirzada [1997] SCMR 232 also relied, 17th amendment case on at Pp. 40 & 41 paras 52 to 54 <www.supremeCourt.gov.pk/web/user_files/File/JR_Judgment_on_17th_Amendmend_and_Presidents_Uniform_Case.pdf>

[25]. Mehmood Khan Achakzai v. Federation of Pakistan PLD [1997] SC 426.

[26]. Ibid 25.

[27]. Chief Justice Sajjad Ali Shah.

[28]. Ibid 25 P. 427 head note E and Para 27.

[29]. Wukala Mahaz Barai Tahaffuz Dastoor v. Federation of Pakistan PLD [1998] SC 1263<http://pakistanconstitutionlaw.com/p-l-d-1998-SC-1263/>

[30]. ibid 29, P. 1318 head note S and 1320 head note T.

[31]. Zafar Ali Shah v. Federation of Pakistan PLD [2000] SC 869.

[32]. After the Army takeover on 12 October 1999, the Chief of Army staff preferred to be called Chief Executive instead Chief Marshal law Administrator.

[33]. Pakistan Lawyers Forum v. Federation of Pakistan PLD [2005] SC 719, <www.supremeCourt.gov.pk/web/user_files/File/JR_Judgment_on_17th_Amendmend_and_Presidents_Uniform_Case.pdf>

[34]. Ibid 33, Para 56.

[35]. Ibid 33, Paras 57-59.

[36]. Muhammad R Awan 'judicial activism in Pakistan in commercial and constitutional matters: Let justice be done though the heavens fall' P. (1-28) Journal of International Criminal Justice Research Volume 1 -July, 2014 http://www.aabri.com/manuscripts/141803.pdf

[37]. Nadeem Ahmad v. Federation of Pakistan the Supreme Court of Pakistan (original Jurisdiction) order dated 21st October 2010 in 18th amendment case <www.supremeCourt.gov.pk/web/page.asp?id=433>

[38]. ibid 37, Para 6.

[39]. ibid 37, Para 10.

[40]. Ibid 37, paras 8-9.

[41]. Walter E. Williams, `Liberty versus the Tyranny of Socialism: Controversial Essays’. P. 236: Charles Evans Hughes CJ of USA, `Speech before the Chamber of Commerce, Elmira, New York 3 May 1907’, published in Addresses and Papers of Charles Evans Hughes P. 139.