When during the hearing of petitions challenging validity of 26th Amendment on Wednesday, Hamid Khan Advocate stressed for formation of full bench of Supreme Court under Article 187, Mr Justice Aminuddin Khan who heads the constitution bench remarked that they were relying on the existing constitution until a fresh amendment was made, adding that if they forget Article 191A then the Supreme Court would cease to exist today. What Mr Justice Aminuddin said simply means that the courts are bound to dispense justice according to the constitution and the amendments made in it by the parliament.
Article 187 under which Hamid Khan asked for formation of full bench of the SC is actually about the powers of the court to issue directions, orders or decrees as may be necessary for doing complete justice any case or matter pending before it, which after the 26th Amendment under which the constitutional bench is now hearing the petitions has been formed, no more remains relevant in case of constitutional petitions.
Justice Aminuddin, by acknowledging that the Court has to go by the existing constitution (including 26th Amendment), has actually established the fact that Parliament which represents the will of the people is the mother of all state institutions and is empowered to amend the constitution like it has done in the case of 26th Amendment. The constitution itself empowers the Parliament to amend the constitution as and when required making it unequivocally clear that the amendment thus made could not be challenged in any court of law. Article 239(5) and 239(6) in this regard say “No amendment of the Constitution shall be called in question in any court on any ground whatsoever. For the removal of doubt, it is hereby declared that there is no limitation whatsoever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.”
I think in the presence of such a categorical assertion by the constitution there was no justification for even accepting the petitions challenging the 26th Amendment by the Constitutional bench. But the dilemma is that a bad unconstitutional precedent was set by the judges of the Supreme Court by entertaining petitions against 18th and 21st Amendments in 2015. That was the time when judicial activism was at its peak and judges were in an assertive mood.
The judiciary being custodian of the constitution must strictly adhere to the constitution and should have straight away refused to entertain petitions challenging the 26th Amendment. If Mr Justice Aminuddin and others hearing the petitions really believe in abiding by the existing constitution and being its custodians then they should throw them out instead of wasting time of the nation and resources on non-existing issues. It may be the political agenda of the petitioners to challenge the amendment but not the judges. Hearing the petitions against the amendment is itself a violation of the constitution
Although the court dismissed petitions against the 18th Amendment by 14-3 majority and those against the 21st Amendment by 11-6 majority, 9 out of 14 judges maintained that parliament’s powers to amend the Constitution were limited, and it was for the SC which was a guardian of the constitution to determine those limitations and if those limits were crossed to strike down the amendment. They followed the concept of ‘Basic Structure’, originally adopted by the Indian Supreme Court.
However Four judges including Chief Justice Nasir-ul-Mulk, Mr Justice Iqbal Hameedur Rehman, Mr Justice Asif Saeed Khosa, and Mr Justice Saqib Nisar rejected any limitations on Parliament’s power to amend the Constitution, rejecting the doctrine of ‘ basic structure’. They were right on the money to understand the spirit and thought behind absolute power of the Parliament to amend any provision of the constitution.
I will mention the views of only two judges in this regard. Mr Justice Saqib Nisar stated, “Matters of governance must be decided by the chosen representatives of the people, and should not be left at the “mercy of the collective wisdom of unelected judges”, who “are the least accountable branch in Pakistan. The “basic structure” doctrine, as adopted by the Supreme Court in India, is a vehicle for judicial aggrandizement of power at the expense of the elected representatives of the people”.
Mr Justice Asif Saeed Khosa argued, “Even if the preamble and salient features of the Constitution expressed the will of a past generation then why should the Supreme Court hold future generations000 hostage to it? Surely, if at some future stage the people of this country have a change of heart or mind … then the will of the people will have its way and the aspirations of yore or yesteryears may not be able to shackle it”. These minority views are jurisprudentially and constitutionally far more convincing than the majority’s opinion regarding limitations on powers of the parliament.
When the constitution says that the parliament can amend any provision of the constitution it also implies that the Parliament can also change its fundamental structure.
Article 239(5) and (6) of the constitution which vest absolute and unchallengeable power in the Parliament to amend any provision of the constitution is very logical from the perspective of bringing changes in the constitution to deal with new challenges and emerging ground realities. It is because of this rationale that every written constitution makes provision for amending the constitution by the parliament. Accordingly so far 26 amendments have been made in the constitution of Pakistan.
The Parliament is the creator of the Constitution which reflects the will of the people. When this constitution was framed there was a general consensus that Pakistan needed a parliamentary system of government. The Parliament also determined fundamental rights as well as the principle of trichotomy of powers. As regards making amendments in the constitution, I will go with remarks of Justice Asif Saeed Khosa regarding the absolute power of Parliament to amend any clause or article of the constitution in conformity with the will of the people. These articles hardly need any interpretation.
So When the constitution categorically says that there is no limitation on the power of Parliament to amend any of its provisions and it cannot be challenged in any court of law on any ground, the courts must uphold it by refraining from entertaining any petition against any amendment or condescending to give a different meaning to the relevant Article.
The judiciary being custodian of the constitution must strictly adhere to the constitution and should have straight away refused to entertain petitions challenging the 26th Amendment. If Mr Justice Aminuddin and others hearing the petitions really believe in abiding by the existing constitution and being its custodians then they should throw them out instead of wasting time of the nation and resources on non-existing issues. It may be the political agenda of the petitioners to challenge the amendment but not the judges. Hearing the petitions against the amendment is itself a violation of the constitution.
