M. Mushtaq Jadun
Among the democratic countries, only British Parliament is fully sovereign. It has constitutional power to make legislation on any subject, and to any extent, as there is no concept of basic structure of Constitution. Neither such framework has been defined by the British Supreme Court. United State Congress cannot legislate to take away fundamental rights because American Independence declaration and the constitution dictates that fundamental rights are inalienable and God-given. Since these rights have not been granted by the Congress so the Congress cannot legislate to take away these rights. Article 368 of the constitution of India gives an impression that powers to amend the Constitution are absolute and the Parliament can amend the Constitution to any extent.
Earlier judgements of Indian Supreme Court held (Golak Nath VS the State of Punjab), by 6 to 5 majority, that there is implied limitation on the powers of Parliament to amend the Constitution. The Court further held that the people had reserved the fundamental rights for themselves. Thus, the basic structure and essential features concept emerged and the judges in specific judgements laid the parameters of basic structure such as supremacy of the Constitution, republican and democratic form of government, separation of powers, individual freedom and secular nature of constitution. Basic Structure of Indian Constitution was further defined in Kesavanada Bharti VS Kerala Case associated with the validity of 24th amendment. In this landmark judgement the Indian Supreme Court held that the Parliament’s powers to amend the Constitution under article 368, are not unlimited. In this judgement, the Supreme Court set basic features of Indian Constitution such as democracy, federalism, secularism and the protection of fundamental rights. Similar views were held in Indra Ghandi VS Narain Case of 1975.
In Minerva Mill case of 1980, several provisions of 42nd Constitutional amendment were declared unconstitutional and struck down. So far 106 amendments have been made in the Indian constitution. Thus, the Indian constitution is the most amended constitution. Supreme Courts of USA, India and Pakistan have given landmark judgements in regard to basic framework of Constitution and power of legislative to amend the Constitution. In USA, just 27 amendments have been made in the Constitution till now, ten in 1791. So over a period of about 234 years, only seventeen amendments were made, last being in 1992, which was pending for 203 years. Congress can propose an amendment with two third vote of Senate and House of Representatives or by two third of states legislatures. It has to be ratified by three fourth of the states which means 38 states or by Convention in three fourth states. Thus, Constitutional amendment procedure in USA is most rigid and cumbersome as compared to UK and Pakistan.
Since 1789 about 11848 proposals, regarding amendments have been drafted so far. Seven amendments are still unratified since 1792.Supreme Court in USA in Marbury VS Madison (1803) case arrogated to itself the powers of judicial review, which means the power to determine the constitutionality of amendments. In Pakistan, 26th Constitutional amendment has re-triggered the debate about powers of the Parliament as per article 239(6) to amend the Constitution. Under our Constitution, Parliament is not fully sovereign. As per Constitution, sovereignty belongs to Allah and any law, which is repugnant to the Injunctions of Holy Quran and Sunnah, shall be declared null and void. Fudamental rights are also subject to law. As per article 8, any law or custom or usage having the force of law, inconsistent with the rights conferred under chapter II (article 8 to article 28), shall be void. But provisions of article 8 are not applicable to armed forces, police and laws specified in First Schedule and other laws specified in part I of the First Schedule.
It is obvious that fundamental rights, as enshrined in article 8 to 28, are not absolute but subject to law. In case of emergency under article 232 to 234, fundamental rights can be suspended. Moreover, no writ petition can be filed in any area or province where army has been called in aid of civil power under article 245 of constitution. Constitutional amendments in our constitution were challenged multiple times, landmark judgements in this regard are Asma Jilani case(PLD 1972 SC 139), Brig FB Ali(PLD 197 SC 507), Abdul Wali Khan(PLD 1976 SC 57),Dewan Textile, Zia ur Rehman(Fifth amendment was challenged), Mehmood Khan Achakzai Case 1997 and most recent landmark judgement of Supreme Court (District Bar Rawalpindi VS Federation) reported as PLD 2015 SC 401.In Zafar Ali Shah Case, General Musharaf was even allowed to amend the Constitution. It has been constant view of our judges that the judiciary is creation of Constitution and can not declare any provision of the constitution to be invalid unless it has been adopted in a manner different to that prescribed by the constitution.
Through eighth and seventeenth amendment drastic changes were made which almost converted the Parliamentary form of government to quasi-Presidential, yet both the constitutional amendments were validated by the Supreme Court. In the recent landmark judgement (PLD 2015 SC 401) whereby 18th and 21st Constitutional amendments were challenged; the Honorable Supreme Court of Pakistan dismissed the petition against 18th amendment with a majority of 14 to 3. In regard to 21st amendment, establishment of military Court was challenged. It was also dismissed with a majority of 11 to 6. In all the cited petitions, it was held that basic structure of Constitution is a question of academic nature which can not be answered. It was further held that as per provisions of article 239(7), there is no limitation, expressed or implied, on the powers of parliament to amend the Constitution and Court lacks jurisdiction to strike down any Constitutional amendment.
Author of FATA: A Socio-Political Appraisal Currently Advisor to Federal Ombudsman, Regional Office, Peshawar.
