A landmark verdict

Rejecting as many as 35 identical constitutional petitions challenging the validity of the 18th and 21st amendments in the constitution, a 17-member bench of the Supreme Court of Pakistan has, in a landmark verdict, upheld both constitutional amendments passed by the parliament of the country.
The much-awaited verdict of the apex court has formally validated the establishment of military courts in Pakistan. These military courts were established by the government this year when parliament, after amending the Pakistan Army Act, 1952, passed the 21st Amendment for this purpose. It is indeed a historic decision which will help end more than a decade-long controversy in the country regarding the so-called basic structure of the constitution.
At present many legal experts, political analysts and human rights activists are criticising the verdict of the apex court. According to them, the act of establishment of military courts is against the tenets and spirit of human rights, fundamental freedoms and due process of law. However, all the current criticism on this verdict is necessarily out of the real context of this case. Before criticising this verdict on any ground, one should not ignore that the primary question before the court was to decide the relevance of the so-called basic structure doctrine in the constitutional jurisprudence of Pakistan rather than the propriety or reasonableness of the very act of establishment of military courts in the country.
Were this matter confined only to an amendment in the Pakistan Army Act, 1952, the apex court would have overturned the government’s act of establishment of these special courts. However, once parliament has endorsed the amendment in the said law through a constitutional amendment, the matter necessarily involves a complex question of law.
In fact, all the petitioners challenging these constitutional amendments in the apex court have been relying primarily on the ‘basic structure’ argument in their petitions. According to this argument, the constitution of Pakistan has some salient features like federalism, a parliamentary form of government, fundamental human rights, Islamic provisions and independence of judiciary that jointly form the very framework of the constitution. These features are so important, fundamental and inevitable that even parliament has no right to modify or destroy them through any constitutional amendment.
The origin of this oft-referenced basic structure doctrine can easily be traced in Indian constitutional jurisprudence. The Supreme Court of India recognised this doctrine through its landmark decision in the Kesavananda Bharati case (AIR 1973 SC 1461). In Pakistan, this doctrine gained prominence when the Supreme Court of Pakistan partially adhered to it in the Mahmood Khan Achakzai case (PLD 1997 SC 426) in 1997. Ever since, there have been various conflicting and contradictory judgements of the apex court on this issue.
As a matter of fact, this doctrine has never been adopted by our apex court in absolute terms. Nor has it struck down any constitutional amendment passed by parliament so far. In fact, this issue has been misconstrued and overplayed to the extent that some people really started believing in its existence. In the Mahmood Khan Achakzai case, the Supreme Court recognised a basic structure of the constitution. However, it did not absolutely restrict the power of parliament to amend the constitution but merely made it conditional to the provisions of the Objectives Resolution, which had somehow become its ‘grundnorm’.
In the Zafar Ali Shah case (PLD 2000 SC 869), the Supreme Court did not restrict any power of parliament but that of a military dictator to change the basic structure of the constitution. Likewise, in Nadeem Ahmed v Federation of Pakistan (2010), the Supreme Court did not strike down the 18th Amendment passed by parliament but merely referred this matter to parliament for reconsideration after recording its reservations on the newly-devised procedure for appointment of judges of superior courts.
Meanwhile, in the case of Pakistan Lawyers Forum v Federation of Pakistan (PLD 2005 SC 719), the apex court maintained that, undoubtedly, the constitution of Pakistan has some basic features. But, at the same time, it also explained that it was not the job of the judiciary to protect them.
The very doctrine of separation of powers is essentially based on the principle of ‘trias politica’. According to it, all three branches of the government – the executive, the legislature and the judiciary – should wield their powers separately and independent of each other. Presently, this principle of trichotomy of power is part and parcel of constitutional jurisprudence in all civilised countries of the world. Besides ordinary legislation, amending any provision of the constitution is a prerogative of the legislature as it has already created this foremost legal document.
The framers of the constitution of Pakistan were also inspired by the concept like the separation of powers and sovereignty of the parliament. Article 239 of the constitution specifically recognises the unlimited power of parliament to amend any provision of the constitution. Similarly, it also restricts the jurisdiction of the courts to call in question any amendment made by parliament.
Another important aspect of this case is the very scope and parameters within which the superior courts generally exercise their powers of judicial review. Judicial review is a legal procedure under which certain executive and legislative actions are reviewed by the judiciary. It is the method whereby the judiciary can invalidate any law found to be incompatible with the expressed provisions of the constitution.
However, it should not be forgotten that the scope of this legal procedure is generally limited to the ordinary legislation. A constitutional amendment is always considered to be beyond the ambit of this judicial power. Therefore, the issue of amendment in the constitution should not be confused with the power of the judiciary to review ordinary laws.
Apart from Pakistan, there are many countries in the world where the judiciary exercises the power of judicial review. The US Supreme Court, which is regarded as one of the most powerful and vibrant judicial bodies in the world, has so far declared 176 Acts of the US Congress unconstitutional. However, it has never struck down any constitutional amendment made by the Congress. Therefore, asking the apex court of Pakistan to reject an amendment passed by parliament has been rather an unjustified and unreasonable demand.
The apex court of Pakistan has passed a judicious, sensible and balanced verdict in this case. It has wisely rejected the basic structure doctrine. In fact, in the civilised world, India is only significant country currently adhering to this doctrine. The detailed 903-page judgement in this case will certainly help resolve constitutional anomalies and controversies prevailing in the country. At the same time, acknowledging the unfettered power of parliament to make a constitutional amendment, this decision will also go a long way in strengthening democratic institutions in the country.
The writer is a Lahore-based lawyer. Email: mohsinraza.malik@ymail.com