Parliamentary sovereignty is a concept often regarded as indispensable to a strong democracy. To assure this supremacy, the Parliament, being the representative of the will of the people, has been conferred the prerogative to amend the Constitution. The Constitution of Pakistan in its Articles 239 (5) and (6) enshrines the principle that the Parliament is devoid of any limitation when amending the Constitution and also provides it protection from being called into question in any court on any grounds. Though some jurists think that this power of the Parliament is subject to certain constraints, among which is the Theory of Basic Structure.”
Basic Structure of the Indian Constitution
The Indian legal system was the first to adopt this doctrine of basic structure and this question has also been raised several times in the courts of Pakistan. However, the history of this doctrine in Pakistan’s jurisprudence is a bit convoluted.
The basic structure doctrine proposed by a German jurist, Professor Dietrich Conrad, was adopted by the Indian Supreme Court in the landmark case of Kesavananda Bharti v. State of Kerala. According to this theory, a Constitution has a basic structure including certain principles and the legislature can make no such amendment which disturbs that basic structure or meddles with the principles embodying the basic structure of the Constitution.
Basic Structure of the Pakistani Constitution
The Supreme Court of Pakistan in its historic judgment pronounced—in the case of Asma Jillani v. The Government of Punjab—that the objectives resolution of 1949 is the grundnorm of the Constitution of Pakistan. But not much later in the case of State v. Zia ur Rehman, the Supreme Court held that a Constitutional provision can’t be declared void on the ground of being ultra vires (beyond the powers) to the objectives resolution or contrary to national aspirations and affirmed that the objectives resolution is not a supra-Constitutional document. This principle was reiterated in the case of Hakim Khan v. The State.
The question of basic structure was also raised in the case of Mehmood Khan Achakzai v. The Federation of Pakistan, in which the 8th Amendment was challenged. The Supreme Court held that the legislature can not alter the basic features of the Constitution which are federalism, Parliamentary democracy, and Islamic nature. But while acknowledging this limitation, it was also accepted that the question of basic structure could not be answered authoritatively and thus it was not for the judiciary to strike down any Constitutional provision on this ground. Moreover, it was also observed that political sentiment, morality, and force of public opinion restrain the Parliament from altering salient features, however, the Constitution cannot be amended in violation of Islamic provisions or converted into an undemocratic one only by public opinion or political sentiment.
The Basic Structure Theory was once again rejected by the apex court in Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan when it adjudicated upon the Constitutional petitions against the 14th Amendment which added Article 63A to the Constitution. Another case worth mentioning in this regard is Pakistan Lawyers Forum v. Federation of Pakistan. In this case, it was held that in such cases the remedy didn’t lie in the judicial process but rather in the political process. Furthermore, it was declared that such amendments posed a political question against which appeals should be made to the people, not the court. The then Chief Justice Nazim Hussain Siddiqui while dismissing the petitions made the following observations.
“There is a significant difference between taking the position that Parliament may not amend salient features of the Constitution and between the position that if Parliament does amend these salient features, it will then be the duty of the superior judiciary to strike down such amendments. The superior courts of this country have consistently acknowledged that while there may be a basic structure to the Constitution, and while there may also be limitations on the power of Parliament to make amendments to such basic structure, such limitations are to be exercised and enforced not by the judiciary (as in the case of conflict between a statute and Article 8), but by the body politic, i.e., the people of Pakistan.”
– Chief Justice Nazim Hussain Siddiqui
The most recent and comprehensive judgment in this regard was made in District Bar Association Rawalpindi v. Federation of Pakistan which decided the consolidated petitions challenging the 18th and 21st Amendments. In this landmark judgment, 13 out of the 17 judges ruled that the Supreme Court had the power to strike down any Constitutional amendment if it violates or alters the basic features of the Constitution which are ascertainable from the Constitution including democracy, Parliamentary form of government, and independence of the judiciary. Justice Sheikh Azmat Saeed while stating his opinion, to which 7 other judges also agreed, analyzed the cases mentioned above along with the connotations behind the terms like “amendment” and “political question.”
“Therefore as long as the amendment has the effect of correcting or improving the Constitution and not of repealing or abrogating the Constitution or any of its salient feature or substantively altering the same, it cannot be called into question.”
– Justice Sheikh Azmat Saeed
Moreover, the following observation was also made.
“It cannot be disputed that this court has the jurisdiction to interpret the Constitution, identify its salient features, and examine if there are implied restrictions on the amendatory powers of the legislature qua the Constitution and to ensure as the guardian of the Constitution that the legislature remains within such limits as can be gathered from the Constitution. Therefore, there can be no occasion to decline to undertake such an exercise.”
As far as I can discern, it is the people who provide legitimacy to the Constitution and the Parliament. Therefore the Parliament, being representative of the will of the people, shall have the absolute authority to amend the Constitution without any limitation whatsoever. However, the problematic aspect is that this concept is misapplied when the Parliament is not truly sovereign in its decisions but rather is acting upon the ambitions of some non-democratic authoritarian forces, illegitimately constituted or prejudicial to the common welfare. In such a situation it is more the duty of the people to prevent it through an austere public reaction than that of the judiciary. However, I cannot entirely convince myself that such public resistance can succeed without subsequent judicial intervention. Whereas this notion opens another debate about the controversial maxim “Salus populi suprema lex,” which I leave for another day.
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Malik Mohammad Ali is a student of Law at Bahria University Islamabad.