Amending The Constitution


The Judgement of the Supreme Court of Pakistan on the 18th and the 21st Amendments

The factum of the creation of Pakistan as an independent state derived its legality from successive constitutional instruments: the 1956, the 1962 and the 1973 Constitutions being the most conspicuous. The extant constitutional instrument is the Constitution of Pakistan 1973 that has been, to date, amended many a time. And, like some earlier Amendments, the Eighteenth and the Twenty-first Amendments were challenged in the Supreme Court of Pakistan. However, after five months of hearing petitions challenging these Constitutional Amendments, the Supreme Court, on 5th August 2015, passed its judgement whereby it held that the latest Amendments were intra vires the Constitution. The Court upheld the supremacy of Parliament with the Chief Justice Nasir-ul Mulk noting that there is no limitation on the power of Parliament to amend the Constitution.

This write-up is exploratory in nature and aims to serve as a précis of the judgement.

The Document of the Judgement

The document of the judgement is voluminous; it comprises 902 pages with eleven written opinions and one consolidated judgement. The case was heard by the full bench of the Supreme Court that consisted of seventeen judges. Each opinion given in the judgement is erudite and full of legalese, therefore, it takes extra effort to single out common themes. Given the expanse of the judgement and the array of issues that were before the Court for adjudication, it may be prudent to adumbrate only select issues here.

Select Issues

Although the judgement threw up plethora of issues which may be discussed at length, the following select issues may help take an overview of the judgement:

1. Limitations on Parliament’s Powers

Since the said amendments to the Constitution of Pakistan 1973 were made by the Parliament, therefore, the first natural question before the judges was: are there any limitations on the powers of the Parliament to amend the Constitution? The overwhelming majority of the SC judges answered the question in negative. One group of naysayers (JJ. Asif Saeed Khan Khosa and Mian Saqib Nisar) treated clause 5 of the Article 239 as an ouster clause of the jurisdiction of the Supreme Court to test the validity of an amendment to the Constitution; the other group of opponents (CJ Nasir-ul-Mulk and Justice Iqbal Hameedur Rahman) held that there were no express or implied limitations on the Parliament’s powers to amend the constitution. Conversely, the majority held that clause 5 shall be read subject to the doctrine of ‘salient’ features that is very well established in the jurisprudence of Pakistan. In sum, a majority of 13 to 04 the SC held that the challenge thrown at the amendments was maintainable, thereby, the amendments to the Constitution were justiciable.

2. Doctrine of Basic Structure

AMENDING THE CONSTITUTION 1Tracing the origins of the “Doctrine of Basic Structure,” Chief Justice Nasir-ul-Mulk explained that German Professor Dietrich Conrad offered the theory in the backdrop of the Nazi Germany, and that the theory was not universally accepted. He then traced its regional origin in the case of Kesavnanda Bharati (1973) that was decided by the Supreme Court of India, in which the theory was ‘invented’ and was used as a tool to avert politically motivated amendments to the Indian Constitution. He, however, did not endorse its applicability to Pakistan. The main opinion, authored by Justice Sh. Azmat Saeed and to which eight SC judges appended their signatures, held that there was a doctrine of ‘salient’ (he did not use the word ‘basic’) features in the Constitution of Pakistan, and no amendment to the Constitution could militate against these ‘salient’ features which according to the main opinion, include democracy, parliamentary form of government and the independence of the judiciary. Justice Asif Saeed Khan Khosa vehemently opposed the view and called it an ‘academic’ theory. Likewise, Justice Mian Saqib Nisar preferred to call it ‘a vehicle for judicial aggrandizement of power at the expense of the elected representatives of the people’. It may be noted that, if words were any indication, the majority opinion did not use the word ‘basic’ in final articulation of the judgement; it, in fact, used the word ‘salient’: the question whether ‘basic’ and ‘salient’ are of the same legal effect was not answered in the judgement and may be a moot point in the future litigation.    

3. The 18th & the 19th Amendments

The 18th and the 19th Amendments were interrelated. The 18th Amendment introduced a package of amendments in which one related to the introduction of Article 175-A that provided for the process of appointment of judges by specifically introducing a Parliamentary Committee along with a Judicial Commission. Article 175-A-component of the 18th Amendment was challenged in the Supreme Court in 2010. The Supreme Court, through an interim order in the case of Nadeem Ahmed Advocate v. Federation of Pakistan, referred the case to the Parliament for ‘reconsideration’. On the reconsideration, inter alia, the composition of the Judicial Commission was revised through 19th Amendment and instead of two SC judges, four were made its members, and accordingly, Article 175-A was reintroduced through the this amendment. Hence, the decision on the legality of Article 175-A-component of the 18th Amendment was finally given in this case.

a. Independence of the Judiciary (Article 175-A)

Article 175 of the Constitution of Pakistan 1973 constituted the judicature of Pakistan. Its clauses 2 and 3 are considered the fountainhead of the separation of judiciary from the executive as these expressly exclude the use of judicial power by the executive. The 18th Amendment had included a new Article 175-A to the Constitution providing mode of appointment of judges to the courts (i.e. Supreme Court, High Courts and Federal Shariat Court). The proposed mode of appointment included the provision for the Parliamentary Committee comprising legislators from treasury and opposition benches of the both houses of the Parliament. This inclusion of Parliamentary Committee, in view of most of the bar councils and associations of the country, was against the independence of judiciary, and accordingly they had challenged Article 175-A-component of the 18th Amendment. Almost all the opinions rendered in the judgement devoted much attention to this issue. With a majority of 14 to 03, the judges of the Supreme Court held that the inclusion of Article 175-A, in its present form, was not against the Constitution.

The analysis of the issue by different judges is a must read for the students of the constitutional law in Pakistan. Some interesting insights came from JJ. Mian Saqib Nisar and Asif Saeed Khan Khosa. Justice Mian Saqib Nisar held that the judiciary was ‘the least accountable branch’ and that it was a ‘closed brotherhood’. In the same vein, Justice Asif Saeed Khan Khosa quoted the US Chief Justice William Rehnquist who remarked:

“Justice is too important a matter to be left to the judges, or even to the lawyers; the American people must think about, discuss and contribute to the future planning of their courts.”   

b. Adjudication on Miscellaneous Provisions

Miscellaneous issues related to the 18th Amendment included many constitutional provisions. Some prominent issues were:

i. Article 1(a) (Name of Khyber Pakhtunkhwa-KPK):

The issue, according to the main opinion, was not much pressed. On the test of ‘Salient Features of the Constitution’, the matter was not of much significance.

ii. Article 51 (Election to the reserved seats for the minorities on the basis of proportional representation):  

Calling the separate electorate of the minorities introduced through the Eighth Amendment to the Constitution as ‘electoral apartheid’, Justice Sh. Azmat Saeed upheld the amendment.

iii. Article 63-A (Disqualification on grounds of defection, etc.):

In consonance with the ‘ground realities’ of Pakistan, the defection being punished by the Head of the Party instead of the Parliamentary Leader was upheld by the Supreme Court of Pakistan. The expansion of the scope of party discipline from money bills to the constitutional bills was also endorsed.

4. The 21st Amendment

AMENDING THE CONSTITUTION 2The 21st Amendment through a sunset clause (for two years) had provided that Article 175 (about the independence of the judiciary) shall not, inter alia, be applicable to the Army Act 1952. The inapplicability of Article 175 to trials under the Army Act were challenged in the Supreme Court by the bar councils on the grounds that it was against the independence of the judiciary. This appeared a defining issue of the case. Indubitably, the judges were divided on the issue. With the final outcome of 11 to 06, the matter was decided in the favour of military justice. Justice Sh. Azmat Saeed authored the main opinion favouring military justice; while Justice Asif Saeed Khan Khosa presented his views against it. Both backed their opinions with constitutional arguments. It may be healthy to record here the gist of reasons advanced by the honourable judges. Justice Sh. Azmat Saeed, amongst other reasons, accepted the line of arguments of the Attorney General for Pakistan, whereby he had argued that Items No. 1 and 55 of the Federal Legislative List provided legislative competence to the legislature for making laws related to ‘the Defence of Pakistan’ and to enlarge jurisdictions of the courts respectively. He also pegged his reasoning into the evolution of Article 8(3) of the Constitution that excluded the legislation related to the Armed Forces from the application of the Fundamental Rights as provided in the Constitution. He fortified his reasoning with the jurisprudence of the Supreme Court (as discussed in Sh. Liaquat Hussain case while interpreting Article 245 of the Constitution that provided for ‘aid’ to civilian power to the Armed Forces) that provided ‘nexus test’ (which linked trial of civilians under Army Act to the Defence of Pakistan). He also discounted military justice on the ground of its being temporal in nature.

On the other hand, Justice Asif Saeed Khan Khosa devoted a special part of his opinion to the matter. Most of his reasoning was technical. But some parts of his opinion where he had quoted some thinkers may be useful to be presented here. He quoted Groucho Marx on military justice:

“Military justice is to justice what military music is to music”.

On the technical side, he stated that adding a proviso to Article 175 to exclude the purview of the judicial authority was an ‘abortive’ and ‘unsuccessful’ effort of expanding the jurisdiction of Army Courts to civilians. He held that amending Article 8(3) was a must to exclude the inapplicability of Fundamental Rights to civilians to be tried under the Army Act. He quoted Dicey, the pioneer of the Constitutional law, towards the end of his opinion. According to him, Dicey stated that Martial Law is imposed when a civil government is run through military courts or tribunals. He expressed his views strongly on the issue of military justice when he wrote:

“A suicidal measure on the part of the society to counter suicide bombers may not be the most rational legislative step to take.”

The tone of his opinion was unsettling when he quoted Justice Oliver Wendell Holmes of the US Supreme Court who had said:

“…if my country wants to go to hell, I am here to help it.”

It may be noted that Justice Sh. Azmat Saeed was very emphatic in insisting that the power of judicial review of the military justice was very much in the ambit of the superior courts of Pakistan. He went as far as stating that not only the end product, but the aspect of transferring a case to military court was also subject to judicial review to be exercised by the superior courts. He, however, cautioned that if more laws were added to the First Schedule of the Constitution to expand the jurisdiction of military courts, the judiciary would scrutinize the matters more closely. He opined:

“A quantitative change can always result in a qualitative change bringing the matter within the prohibition of the implied restriction upon the power to amend the Constitution.”   

Concluding Remarks

The judgement will have far-reaching consequences for Pakistan. The instant write-up was confined to presenting the judgement, therefore, analytical notes were not offered while presenting respective viewpoints. There are, however, very important aspects that should have been examined in the case. For example, the fact that investigative and judicial powers concentrate at single forum in case of military justice has not been analyzed. Likewise, the legal repercussions of categorizing the war on terror as ‘war’ or full-scale ‘armed conflict’ in the light of the international humanitarian law, the public international law and the international human rights law have not been kept in view. On a philosophical plane, Justice Asif Saeed Khan Khosa touched upon important aspects of the constitutionalism: the legal mode of one generation binding the other with its views, and the value of constitutional amendments as a vehicle of change (to avoid violence and extra-constitutional measures). He dwelled on these issues in great detail. It may be apt to end this write-up with the poem ‘on Children’ by Khalil Gibran (that was reproduced by Justice Asif Saeed Khan Khosa in his opinion) as it has potential to excite thinking:

“Your children are not your children.
They are the sons and daughters of Life’s
longing for itself.
They come through you but not from you,
And though they are with you yet
they belong not to you.
You may give them your love but not your thoughts,
For they have their own thoughts.
You may house their bodies but not their souls,
For their souls dwell in the house of tomorrow,
which you cannot visit, not even in your dreams.
You may strive to be like them, but seek not to make them like you.
For life goes not backward nor
tarries with yesterday.”

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