Amendments bill: can SC hit undo?

We know this much for now, the government tried for two straight and long nights to get a Constitutional Amendment Bill passed. We also know that some of the amendments, not officially released but widely available on the media and not specifically denied by the government, were so drastic that they shocked some even on the treasury benches. This draft is also the subject matter of a petition by senior lawyers before the Supreme Court seeking to restrain parliament from passing it.

But I don’t want to go into the merits or demerits of the Constitutional Amendment Bill and instead confine myself to three different equally pressing questions; could, would or should the Supreme Court of Pakistan interfere with these constitutional amendments?

If the Supreme Court can or does interfere with these constitutional amendments, it can only do so relying majorly on a theory known as the ‘Basic Structure Doctrine’, although other technical and procedural questions such as the non-representation of Khyber Pakhtunkhwa in the Senate and the vacant reserved seats (which are vacant despite Supreme Court orders that they shall be allocated to the PTI) may also come into play.

But what is the basic structure doctrine? Simply that there are certain provisions of the constitution that are so basic and intrinsic to its structure that they cannot be varied or repealed, otherwise the whole edifice of the constitution will fall, and parliament being a creature of the constitution cannot repeal the constitution itself. The other reasoning is twofold, one is lexical in that the word ‘amendment’ only means an improvement and not repeal or destruction, and therefore parliament cannot use the ‘amendment’ powers to destruct the basic structure of the constitution.

The other is political, arguing that the legislature which enacted the constitution used its powers as a constituent assembly, meaning thereby a body that was chosen by the people to draft and adopt the constitution, and the subsequent parliaments are in existence because of that adoption and therefore being the creature of that enactment one that can only exercise legislative powers.

There are many detractors of the said theory and their arguments can be summarized as: one, any engagement with the theory is judicial overreach in as much as it lets unelected judges sit as the final arbiters of the constitution rather than elected representatives of the people. Two, if courts can strike down constitutional amendments it will hinder parliament’s ability to respond to evolving social, economic, or political needs, especially if the constitution has to evolve with changing times. And three, that the constitution itself provides for an amendment process with specific conditions, a two-thirds majority in both houses (and a provincial assembly if its territorial limits are to be changed), and since the constitution already provides safeguards in the exercise of such power, the judiciary should not impose additional constraints on what and how the amendment powers are exercised.

On to the three proposed questions. First, could the amendments be set aside? Absolutely. Even though Articles 238 (5) and (6) of the constitution state that no amendment of the constitution shall be called in question in any court on any ground whatsoever and that for the removal of doubt, it is again declared that there is no limitation whatever on parliament’s power to amend any of the provisions of the constitution, nevertheless as per jurisprudence that currently stands as the valid law, the Supreme Court can set aside constitutional amendments.

In the Rawalpindi District Bar Association case a challenge was made to the 21st Amendment which allowed for military trials of civilians. The matter was heard by the full bench of the Supreme Court, and 13 out of 17 judges held that the Supreme Court of Pakistan can strike down an amendment to the constitution if an amendment violates the basic structure of the constitution, with only four judges stating that the court did not enjoy such powers.

Even though the majority dismissed the challenges, eight judges did only because they found the amendments did not in fact violate the basic structure. In other words, although the majority discovered and reiterated the power, it did not invoke it in this case.

In my opinion, the most powerful judgment was written by Justice Qazi Faez Isa (before he was CJ) who stated that the military, which is a part of the executive, cannot conduct criminal trials because judicial power can only be exercised by the judiciary, and this was a salient feature of the constitution and part of the basic structure. So as the law currently stands, the Supreme Court does indeed have the power to set aside such amendments, and one which is based on a holistic reading of the constitution and not just one specific provision of the constitution.

Which brings us to the question of: would the Supreme Court interfere? In my opinion, yes. Even though the Supreme Court has never set aside a constitutional amendment, in the Nadeem Ahmed case it did show displeasure with the provisions of the 18th Amendment relating to judicial appointments. In that case, it did not strike it down but referred the matter back to parliament, which in obedience to the Supreme Court’s decision backtracked and passed the 19th Amendment.

So an amendment has never been struck down historically, but if an amendment like the one alleged is passed, the Supreme Court will definitely set it aside. I say this first due to the cold war that has been brewing for long, consider the clarificatory order passed by the Supreme Court on the Election Commission’s application a mere day before the rumours (which later turned out to be true) of tabling the amendment. And second, after looking at political realities which are that this is a parliament that has severe allegations of having been formed on the basis of a rigged general election and the severe contempt and unpopularity the electorate has for the government for a multitude of reasons including the uncontrolled economic nosedive and inflation.

Courts do not operate in a vacuum, and for an unpopular government to collide with the judiciary in such a manner will give the Supreme Court the chance it needs to set aside a constitutional amendment, and hence in my opinion it is highly probable that the Supreme Court would set aside such an extreme and draconian constitutional amendment under the current weather.

In so far as answering the question of whether the Supreme Court should set aside such an amendment, I would urge it to do so. The argument I seek to make has been said in much better words by German jurist Dietrich Conrad who encouraged the Indian Supreme Court in the following manner: “Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept.

“So, if for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two states of Tamilnadu and Hindustan proper? Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law?

“Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the president acting on the advice of the prime minister? Could the amending power be used to abolish the constitution and reintroduce, let us say, the rule of a Moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period – discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.”

I too would propose some fictitious amendments: could parliament make Pakistan a monarchy and declare a politician king or queen to rule by decree? Could parliament abolish the Supreme Court or create a Federal Constitutional Court to sit above it? I rest my case.

The writer is a Karachi-based barrister practising constitutional and administrative law.