From the horse’s mouth – excerpt from 17th amendment verdict on “basic structure”

Ironically, while Justices Saeeduzzam Siddiqui, Justice Fakhruddin Ebrahim, et al are suggesting that the ability of the Supreme Court to strike down a constitutional amendment is “an open question” and Akram Sheikh has already cited Justice Sajjad Ali Shah’s suspension of the 13th and 14th amendments in 1997, the longest list of arguments against the idea that Pakistan adheres to the Indian doctrine of Basic Structure (under which the Indian Supreme Court has argued that it is, indeed, able to strike down any constitutional amendments that are in conflict with the basic structure of the Indian constitution) comes from the Supreme Court’s own judgment on the 17th Amendment Case. This judgment upholds Aitzaz Ahsan’s contention that the Parliament is empowered to change the basic structure of the Constitution.

Justice Iftikhar Chaudhry was one of the 5 Supreme Court judges on the bench that delivered this judgement. This judgment dismissed all petitions questioning the legality of the 17th amendment. Justice Fakhruddin Ebrahim has acknowledged this fact in the article quoting his opinion in The News, yesterday.

“In the latest example of 17th amendment, the court has held that it can only point out the flaws in the constitutional amendment,” said Justice F G Ibrahim adding: “But in India, a principle has been laid down that the courts can strike down an amendment.”

However, I am not sure why Justice Ebrahim is not considering the part of the judgment which deals with the question of whether the Basic Structure doctrine applies to Pakistan since it is quite clear that it does not. Here is the relevant portion of the judgement:

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.

42. First this issue was examined in Ziaur Rahman’s case, in which various persons who had been convicted by military courts had challenged the purported ratification of the acts of that regime vide Article 281 of the Interim Constitution of Pakistan, 1972. In addition, the said persons had also challenged the vires of the
Interim Constitution itself, inter alia, on the basis that the said Constitution had been framed by an assembly which had been elected on the basis of a legal framework prescribed by a regime later declared to be illegal by this Court in Asma Jilani’s case PLD 1972 SC 139. A five-member bench of this Court held as follows:

“So far, therefore, as this Court is concerned it has
never claimed to be above the Constitution nor to
have the right to strike down any provision of the
Constitution. It has accepted the position that it is a
creature of the Constitution; that it derives its
powers and jurisdictions from the Constitution; and
that it will confine itself within the limits set by the
Constitution . . . .(page 69)
[I]t is now necessary to examine as to whether any
document other than the Constitution itself can be
given a similar or higher status or whether judiciary
can, in the exercise of judicial power, strike down
any provision of the Constitution itself either,
because, it is in conflict with laws of God or of nature
or of morality or some other solemn declaration
which the people themselves may have adopted for
indicating the form of government they wish to
establish. I, for my part, cannot conceive a situation,
in which, after a formal written constitution has been
lawfully adopted by a competent body and has been
generally accepted by the people, including the
judiciary, as a Constitution of the country, the
judiciary can claim to declare any of its provisions
ultra vires or void. This will be no part of its function
of interpretation. (pages 70-71)

43. This judgment was subsequently re-examined by a four-member bench of this Court in Saeed Ahmed Khan’s case (PLD 1974 SC 151) in which the submission was that Article 269 of the Constitution of 1973 was liable to be struck down to the extent it sought to oust the jurisdiction of the judiciary. In this context, the
Court held as follows:

“The learned counsel for the respondents has,
relying on the statements of law contained in Vol. 16
of the Corpus Juris Secundum, impressed upon us to
constantly keep in mind the main purpose sought to
be accomplished by the adoption of the Constitution
and to so construe the same as to effectuate rather
than destroy that purpose, which, according to him,
is enshrined in Article 3 of the Interim Constitution
and Article 4 of the permanent Constitution. (pages
165-166)
We are not unmindful of these provisions but after
our decision in Zia ur Rahman’s case, we are no
longer in a position to say that the Martial Law
Regulations, under which the executive actions
impugned in the present cases were taken, have not
acquired the status of a “law’ within the meaning of
these Articles. In any event, it is not possible for us
to declare that a provision of the Constitution is not
law because it seeks to oust the jurisdiction of the
Courts with regard to certain subjects without
affecting the judicial power itself. We cannot strike it
down. We can only interpret it, according to the
accepted rules of interpretation and define its nature
and scope. (emphasis supplied) (pages 166)
44. Subsequently, this Court reiterated this view in Brig (Retd.) F.B. Ali’s case (PLD 1975 SC 507) in which at page 528 it held that “the Courts cannot strike down a law on any such higher ethical notions nor can Courts act on the basis of philosophical concepts of law.”

45. It is worth noting that this Court in the cases of Zia ur Rahman, Saeed Ahmed Khan and F.B. Ali did not take into account Indian caselaw on the question of the jurisdiction of the superior judiciary to strike down a constitutional amendment. However, the Indian case law was subsequently taken into consideration by a six
member full bench of this Court in the well known case of Islamic Republic of Pakistan v. Abdul Wali Khan, PLD 1976 SC 57, 100 in which the vires of the amendment to Article 17 made by the Constitution (First Amendment) Act, 1974 came into question. More specifically, the Court noted the majority judgment in the case of
Kesvavanda Bharati v. State of Kerala, AIR 1973 SC 1461 and then held:
“It is unnecessary for us to enter into this
controversy, as this Court is committed to the view
that the “the judiciary cannot declare any provision
of the Constitution to be invalid or repugnant” to the
national aspirations of the people and the validity of
a Constitutional amendment can only be challenged
if it is adopted in a manner different to that
prescribed by the Constitution. (page 100)

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).

47. The challenge to the Seventh Amendment to the Constitution before the High Court of Sindh failed in the case reported as Niaz A. Khan v. Federation (PLD 1977 Karachi 604 at 648).
48. Soon thereafter, this Court was once again faced with the issue of the validity of a constitutional amendment in the case of Federation of Pakistan v. United Sugar Mills Ltd., PLD 1977 SC 397 which related to the Constitution (4th Amendment) Act, 1976. In the said case, a five member full bench of this Court again referred to Indian cases on the subject and held:

“In Pakistan, this Court in the case of Zia ur Rahman
has, however, firmly laid down the principle that a
constitutional provision cannot be challenged on the
ground of being repugnant to what are sometimes
stated as “national inspirations” or an “abstract
concept” so long as the provision is passed by the
competent Legislature in accordance with the
procedure laid down by the Constitution. (page 410)

49. In Jehangir Iqbal Khan v. Federation PLD 1979 Peshawar 67 the Peshawar High Court rejected a challenge to the Fifth Amendment to the Constitution.

50. In the well known case of Fauji Foundation v. Shamim ur Rehman (PLD 1983 SC 457) a four member bench of this Court examined the concept of limitations on legislative power and reaffirmed the conclusions in the cases of Zia ur Rahman and United Sugar Mills. The Fauji Foundation’s case is particularly noteworthy in
that, this Court specifically examined the various Indian cases on the point, as well the judgment of Mr. Justice Shameem Hussain Kadri in the case of Darwesh M. Arbey v. Federation of Pakistan, PLD 1980 Lah. 684. In that case, the learned judge had held with (7th respect to the Constitution Amendment) Act that “The
Parliament is not sovereign to amend the Constitution according to its likes and dislikes much less than changing the basic structure of the constitution.” This Court noted at p. 627 of the Fauji Foundation case that the Indian cases did not advance the position taken by Kadri, J. and that “the learned Judge failed to notice that the amending power, unless it is restricted, can amend, vary, modify or repeal any provision of the Constitution.” The Darwesh M. Arbey case was overruled.

51. The issue of amendments to the Constitution was considered also by the High Court of Sindh in Sharaf Faridi’s case. In the said judgment, a seven member full bench of the said Court headed by Ajmal Mian, J., (as he then was) examined the question as to whether the changes in the Constitution brought about by the
Fifth Amendment to the Constitution could be declared ultra vires to the Constitution and concluded that the said amendment could not be struck down, either on the basis of its alleged repugnancy to Art. 2A of the Constitution or for being violative of the basic structure of the Constitution.

52. Subsequently, another seven member bench of that Court examined the precise question as to whether the superior judiciary was competent to strike down amendments to the Constitution in the context of the Eighth Amendment and the various amendments to the constitution made by the 1985 Assembly in Abdul Mujeeb Pirzada’s case. Ajmal Mian, J., (as he then was) concluded on behalf of a unanimous Full Bench, after a
thorough and detailed review of both Pakistani and Indian case law, as follows:

“I am, therefore, of the view that in presence of the
above unambiguous dictums of the Pakistan
Supreme Court, it is not open to this Court to hold
that a provision of the Constitution can be struck
down on the ground of its being violative of the
Objectives Resolution or of national aspirations or of
higher ethical notions or of philosophical concepts of
law or of the basic structure. (page 70)

53. The judgment in Abdul Mujeeb Pirzada’s case may also be noted with respect to the point that it specifically considered the contention of the petitioners therein that the doctrine of basic structure already stood implicitly accepted by this Court in Fazlul Quader Chowdhary’s case (PLD 1963 SC 486). This contention was rejected in the following words:

“It is therefore evident that the consistent view of
the Pakistan Supreme Court has been that a
Constitutional provision cannot be struck down on a
ground other than that it was passed in a manner
other than provided under the Constitution The case
of Fazlul Quader Chowdhary relied upon by Mr.
Yahya Bakhtiar does not lay down any contrary
proposition than what has been held by the Supreme
Court in the aforesaid subsequent cases. (page 70)

54. The judgment in the case of Abdul Mujeed Pirzada was subsequently upheld by this Court in Mahmood Khan Achakzai’s case. The said case was disposed of by virtue of a short order, reported as Abdul Mujeeb Pirzada’s case (1997 SCMR 232), which stated in relevant part as follows:

“What is the basic structure of the Constitution is a
question of academic nature which cannot be
answered authoritatively with a touch of finality but
it can be said that the prominent characteristics of
the Constitution are amply reflected in the Objectives
Resolution which is now substantive part of the
Constitution as Article 2A inserted by the Eight
Amendment.”

55. The detailed judgment in the said case was subsequently reported as Mahmood Khan Achakzai’s case. It may be noted further that the said case was decided not by one judgment, but that there were in fact three separate judgments. One of the two leading judgments was written by the Chief Justice, Mr. Justice Sajjad Ali Shah and was signed (in effect) by only four other judges. Saleem Akhtar, J., did not sign the judgment of Sajjad Ali Shah, C.J. while Zia Mehmood Mirza, J., noted that he concurred only with the conclusion of the learned Chief Justice that the appeals deserved to be dismissed. Saleem Akhtar, J., instead authored a separate leading judgment, which was also signed by four other members of the bench, this time with the exception of Zia Mehmood Mirza, J., and Sajjad Ali Shah, C.J. Finally, Raja Afrasiab, J., who had also concurred with the judgments of both the Chief Justice and Saleem Akhtar, J., authored his own independent judgment as well.

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.

8 responses to “From the horse’s mouth – excerpt from 17th amendment verdict on “basic structure”

  1. good post

    thanks for writing…unfortunately our society is polarized…almost irretrievably at times…and prejudice and personal loyalties win over impartiality and sense

  2. grandtrunkroad

    thanks… yup, it doesn’t make much sense to go over these judgments each of which was rather obviously written for political expediency rather than due to any constitutional or ethical principles.

    on the other hand, it’s utterly ridiculous that supporters of IMC are ignoring a judgment which he himself was an architect of and instead citing sajjad ali shah’s controversial suspension of 13th and 14th amendment (which itself was due to political expediency rather than any principle).

  3. nobody .. repeat… nobody is above a little politics

    our venerable CJ who has a penchant for suo moto actions refuses to deal with asghar khan’s petition…for obvious reasons…

    and

    i wonder (well not really) why he does not follow up in erstwhile CJ hamood ur rehman
    😉

  4. takhalus

    i don’t get it..the basic structure is Islam, parliamentry deomcracy, federalism no? where does the challege come from?

  5. Rabia

    well the judges would have to prove that some part of the 18th amendment challenged the basic structure of the constitution (they’ll probably say the judicial appointment procedure changes the separation of powers or something). The issue is whether they are even entitled to do so as they claim. If you go by this judgment, then they are not.

  6. rabia

    Actually… just remembered. The CJ mentioned the part in the objectives resolution on an independent judiciary. In India the preamble is considered to be part of the basic structure. So I guess that’s what he’ll argue is being violated.

  7. takhalus

    Yeah but the separate commission should ensure the independence? smacks of opportunism by the establishment if you ask me..

  8. Rabia

    yeah… i think so. the question is are they going to follow through with this or are they going to just create a big noise and back down? i think they are going to try to strike it down! i wonder what’s going to happen then? back in 1997 that resulted in the storming of the supreme court but i don’t think zardari & co are going to try that, so what then?

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