Supreme Court’s earlier judgement and the 18th amendment case

Faisal Naseem Chaudhry

The 18th Amendment case is likely to conclude soon and it is quite probable (courtesy of remarks of the Honourable Judges) that the SC may strike down a constitutional amendment finding it contrary to Independence of Judiciary; in other words finding it contrary to the ‘Basic Structure of the Constitution’.

Pasted below are some excerpts from a Five Member Bench Judgement of the SC delivered on 13 April 2005. The Judgement is known as Pakistan Lawyers Forum vs Federation of Pakistan and through this cluster of different petitions, the constitutionality of 17th Amendment was challenged before the SC. One of the grounds was that the 17th Amendment was violative of the Basic Structure of the constitution. As stated earlier, it was a Five Member bench and the then two members are still members of the Full Bench of today i.e. Chief Justice Iftikhar Chaudhry and Justice Javed Iqbal.

President Musharraf’s Uniform / Dual Office quite analogous to President Zardari’s Dual Office was also challenged in the same petition, and dismissed accordingly, but since that is not the subject today, so that part of SC’s wisdom as to how it handled that question in 2005 is ignored at this point of time to be discussed in future.

The five member bench in 2005 dismissed the petition and upheld the 17th Amendment. The court held that the Indian Doctrine of Basic Structure of the Constitution has never been accepted in Pakistan’s judicial history; and that the Court can strike down a Constitutional Provision only if it is not passed in accordance with the procedures provided by the Constitution itself. Once an amendment is passed, it is left to the wisdom of the Parliament which passed it to change it in future according to the aspirations of the people of Pakistan.

Below excerpts are certain paragraphs taken from the judgement, numbered, and very easy to comprehend. If the Supreme Court strikes down the 18th Amendment, it will have to come up with a very strong reasoning for deviating from its own judicial precedents.

Paragraphs from the Judgement:

32. As to the issue of striking down the 17th Amendment on procedural grounds, it is observed that an Amendment to the Constitution, unlike any other statute can be challenged only on one ground, viz., it has been enacted in a manner not stipulated by the Constitution itself.

41. It has been urged by the petitioners that the 17th Amendment in its entirely or at least specifically, Article 41 (7)(b) and Article 41(8) should be struck down as violative of the basic structure of the Constitution. It may first be noted that it has repeatedly been held in numerous cases that this Court does not have the jurisdiction to strike down provisions of the Constitution on substantive grounds.

46. A challenge to the Fourth Amendment to the Constitution on the ground of the doctrine of basic structure was rejected by the High Court of Sindh in Dewan Textile Mills v. Federation (PLD 1976 Karachi 1368).

56. 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. In this context, it may be noted that while Sajjad Ali Shah, C.J., observed that “there is a basic structure of the Constitution which may not be amended by Parliament”, he nowhere observes that the power to strike down offending amendments to the Constitution can be exercised by the superior judiciary. The theory of basic structure or salient features, insofar as Pakistan is concerned, has been used only as a doctrine to identify such features.

57. The conclusion which emerges from the above survey is that prior to Syed Zafar Ali Shah’s case, there was almost three decades of settled law to the effect that even though there were certain salient features of the Constitution, no constitutional amendment could be struck down by the superior judiciary as being violative of those features. The remedy lay in the political and not the judicial process. The appeal in such cases was to be made to the people not the courts. A constitutional amendment posed a political question, which could be resolved only through the normal mechanisms of parliamentary democracy and free elections.

58. It may finally be noted that the basic structure theory, particularly as applied by the Supreme Court of India, is not a new concept so far as Pakistani jurisprudence is concerned but has been already considered and rejected after considerable reflection as discussed in the cases noted hereinabove. It may also be noted that the basic structure theory has not found significant acceptance outside India, as also discussed and noted in the Achakzai’s case. More specifically, the Supreme Court of Sri Lanka refused to apply the said theory in a case, reported as In re the Thirteenth
Amendment to the Constitution and the Provincial Councils Bill (1990) LRC (Const.) 1. Similarly, the said theory was rejected by the Supreme Court of Malaysia in a case titled Phang Chin Hock v. Public Prosecutor (1980) 1 MLJ 70.

59. The position adopted by the Indian Supreme Court in Kesvavananda Bharati case is not necessarily a doctrine, which can be applied unthinkingly to Pakistan. Pakistan has its own unique political history and its own unique judicial history. It has been the consistent position of this Court ever since it first enunciated the point in Zia ur Rahman’s case that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by the appropriate political forum, not by
the judiciary. That in the instant petitions of this Court cannot abandon its well settled jurisprudence.

85. The petitioners also argued that the statute be struck down because it was not a “good thing”. This Court, however, held in Zia-ur-Rahman’s case that “it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law”. This Court has consistently held that the wisdom or policy of the legislature is not open to question in the exercise of the power of judicial review.

87. Lastly, the petitioners argued that the statute be struck down because that would be the more appropriate thing to do and would be in consonance with popular demand. This Court has, however, always held that statutes are not to be struck down lightly. The Court must make every attempt to reconcile the statute to the Constitution and only when it is impossible to do so, must it strike down the law.

88. Statutes are presumed constitutional and the burden of proving otherwise is on the petitioners. This Court has never struck down a statute on subjective notions of likes and dislikes or what is popular and unpopular. That is not its function. It is as much its duty to uphold a statute, which is constitutional as is its duty to strike down an unconstitutional statute.

90. This Court must have due regard for the democratic mandate given to Parliament by the people. That requires a degree of restraint when examining the vires of or interpreting statutes. It is not for this Court to substitute its views for those expressed by legislators or strike down statutes on considerations of what it deems good for the people. This Court is and always has been the judge of what is constitutional but not of what is wise or good. The latter is the business of Parliament, which is accountable to the

92. In consequence, the petitions are dismissed. Above are reasons for the short order announced on 13 April 2005.

13 April 2005

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Filed under Pakistan

2 responses to “Supreme Court’s earlier judgement and the 18th amendment case

  1. Faisal Naseem Chaudhry

    Article 68 of the Constitution states: “No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.” What if the Parliament, in the best of its wisdom, reviews its own precedents of the past, and decides if ouster clauses can be ignored by the Judiciary in the ‘larger interest’ then why not to ignore this prohibition contained in Article 68 ?

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