Basic Structure Theory – Part II
The Basic Structure Theory has long been debated in the judicial history of Pakistan from the famous case of Asma Jillani [1] to Wukla Mahaz Barai Tahafuz-e-Dastoor[2]. Our Supreme Court never accepted the Indian doctrine of Basic Structure Theory but in Pakistan the Court did so merely for the purpose of identification of Salient features of the Constitution but never gave power to these salient features or Basic Structure Theory to strike down any provision of the Constitution. Our Apex Court vehemently rejected the theory of Basic Structure Theory adopted by Indian Supreme Court struck down the amendment made by Indian Parliament.[3]
The staunchest opponent of Basic Structure Theory happened to be Justice Mian Saqib Nisar who has opposed the doctrine with vigor. In his separate detailed opinion wherein he has discussed the Indian cases from beginning to till-date, whereas Justice Qazi Faez Essa who has recognized the Basic Structure Theory and informed that in Pakistani context Basic Structure Theory has been derived from Objectives Resolution which has been the Preamble of the all Constitution of Pakistan. The Objectives Resolution which is an important document in the history of Pakistan also came under discussion in the Military Courts case as well. Ms. Asma Jahangir, Sr. Advocate Supreme Court has tried her best to dispel the image of Objectives Resolution as a “Consensus Document” and invited the attention towards the speeches made by opposition/minority member of the Constituent Assembly.
Justice Sarmad Jalal Osmany while rejecting the Basic Structure Theory cited an important case in this regard, Mahmood Khan Achakzai v Federation of Pakistan[4] wherein it was decided that there are some salient feature of the Constitution viz; Federalism, Independence of Judiciary, Parliamentary System of Government blended with Islamic Provisions, even though any provision of the Constitution cannot be struck down on the touchstone of these Salient Features. In this judgment, it was held that the question of Basic Structure Theory cannot be answered authoritatively.
All the petitioners, who filed petitions against 21st Constitutional Amendment, took plea of Basic Structure Theory and argued for striking down, the 21st Constitution Amendment on the touchstone of it, they emphasized that Parliament has inherent and implied restriction of abolishing or deforming the Basic Structure Theory.[5] Supreme Court had never accepted the supra-constitutional power of Objectives Resolution that can strike down any provision of the Constitution. Though there were some conflicting views expressed time to time but Supreme Court remains constant in rejecting this view of repugnancy and contrariety. In Mahmood Khan Achakzai case, it was held that:
“There are conflicting and contradictory judgements in Pakistan on the issue of the so-called basic structure of the constitution. This doctrine has not yet been adopted by our apex court in absolute terms. Nor has it struck down any constitutional amendment passed by parliament so far. In fact, it has been overplayed in the media in Pakistan so much that now some people really believe in its existence. The basic structure doctrine first came to limelight when the Supreme Court of Pakistan delivered its judgement in the Mahmood Khan Achakzai case. The court observed: “It is open to parliament to make amendment to the constitution of any provision of Eighth Amendment as contemplated under Article 239 as long as [the] basic characteristics of federalism, parliamentary democracy and Islamic provisions as envisaged in the Objective Resolution/preamble to the Constitution of 1973 which now stands as substantive part of the constitution in the shape of Article 2A are not touched.”[6]
In the case of Pakistan Lawyers Forum v Federation of Pakistan[7], though recognized some of the Basic Structure Theory of the Constitution but refused to strike down any provision of the Constitution on the touchstone on these provisions. In this judgment Supreme Court refused to follow Indian case Kesavananda Bharti v State of Kerala[8] blindly into the Constitutional jurisprudence of Pakistan.
Separation of Powers is a well settled theory in modern day constitutional history and modern day democracy emphasized that all the organs of the State work within their domain with coordination and avoid encroachment each other.[9]It was held that:-
“Separation of powers is an important political doctrine that is essentially based on the very principle of ‘trios politica’. It contends that all three branches of the government – the executive, the legislature and the judiciary – should wield their powers separately and independent of each other. This principle of trichotomy of power now occupies a pivotal position in constitutional jurisprudence all over the civilised world.
Legislation is an important and basic function of the legislature. Likewise, amending any provision of the constitution is also a prerogative of the legislature as that is the body that forms the constitution. The framers of the constitution of Pakistan were also inspired by the concept of separation of powers. Article 239 of the constitution specifically recognises the unlimited power of parliament to amend any provision of the constitution. Similarly, it also restricts the jurisdiction of the courts to call in question any amendment made by parliament.”
Another important point raised by Mohsin Raza Malik, that Judicial Review by Supreme Court is confined to the ordinary legislation and against the action of Executives, but Supreme Court is barred to strike down any constitutional amendment which is beyond the jurisdiction of the Supreme Court. While concluding his article, the author very candidly said that whether liked or disliked the power to amend the Constitution should be left to the elected representatives of the peoples and to defend and define the Basic Structure Theory should be decided by these elected representatives. He also reminded the Basic Structure Theory in India has also been criticized and not been accepted easily this doctrine of does not exist all over the world. In his words:-
“Judicial review is another legal procedure under which certain executive and legislative actions are reviewed by the judiciary. It is the only method by which the judiciary can invalidate any law found to be incompatible with the expressed provisions of the constitution. It must not be forgotten that the scope of judicial review is only limited to ordinary legislation done by a legislative body. An amendment to the constitution is always considered to be beyond the scope of this judicial power. Including Pakistan, there are many countries in the world where the judiciary exercises the power of judicial review. The issue of amendment in the constitution should not be confused with the power of the judiciary to review ordinary laws in Pakistan.”[10]
Mr. S. M. Zafar, Senior Advocate of Supreme Court and renowned Jurist of Pakistan has recently told while having interview with The News that Supreme Court has upheld and tolerated the Military Courts only because of war-like situation in the country, particularly in Northern Areas. He also mentioned that the Supreme Court constantly rejected the Basic Structure Theory of the Constitution. Preamble is merely forerunner of the Constitution but cannot be granted to strike down any provision of the Constitution. He also quoted a judge in Military Court verdict that since terrorists are waging the war against the State therefore the fundamental rights which are available to the citizen cannot be extended to these enemies of State of Pakistan who are considered alien. He also mentioned that by recognizing Military Courts to try terrorists, Supreme Court has keep the power of Judicial Review or the right to appeal against the conviction by Military court on some ground like mala fide and coram non judice etc. Therefore, if fundamental rights like Right to Fair Trial under Article 10A are violated then it could be cured by High Courts and Supreme Court. While giving reference to the establishment of Military courts extra-ordinary circumstances in different country were justified. Military Courts will be subject to the Judicial Review by High Courts and Supreme Court and the selection of cases will also be reviewable by the apex court, this authority has been retained to check the mala-fide by the selection committee.[11]
“The basic structure theory was debated a long time before the inception of Pakistan and originated from India. This is the final judgment in which the full bench has come to the conclusion that our Constitution has no basic structure and the Parliament being sovereign can amend the Constitution and whatever amendments they make are unquestionable. The minority judgment is that our preamble is different from those of other countries’ constitutions in as much as it has not become a part of the Constitution and there are certain provisions which are mandatory, particularly those provisions relating to the independence of judiciary.
I am personally of the view that the preamble should remain a forerunner of the Constitution and not the one which can undermine any basic provision. This has been the constant view in Pakistan and abroad. As far as military courts are concerned, the minority judgment is that the establishment of a military court not part of the judicial system is a deviation from independence of judiciary. Judicial power must be exercised by the hierarchy of the judicial system which is headed by the Chief Justice of Pakistan.
My understanding of the judgment is that military courts have been ‘tolerated’ by the Supreme Court on account of war-like situation, particularly in the northern areas of Pakistan. And there are many examples of countries confronting similar situation where extraordinary measures have been adopted not only by the executive but have also been tolerated by the judiciary. In America, the Patriot Act and the Peers Council in UK while dealing with the Irish Republican Army (IRA) adopted extraordinary measures that can be used to support the judgment upholding military courts in Pakistan.”
Majority of the judges has categorically decided that there is no express or implied restriction on the Parliament to amend the Constitution and if amendment is made after observing the prescribed procedure mentioned in the Constitution of Pakistan then it cannot be challenged on any ground whatsoever. It is further said that:
“As this court lacks jurisdiction to strike down any amendment in the Constitution, it is not necessary to examine the grounds on which the 18th and the 21st Amendments have been challenged. However, the decision to select and refer the case of any accused for trial under the Pakistan Army Act, 1952, as amended, and any order passed or decision taken or sentence awarded in such trial shall be subject to judicial review on the grounds of corum non judice, being without jurisdiction or suffering from mala fide. With this observation all the petitions are dismissed”[12]
Mr. Justice Nasir ul Mulk, Chief Justice of Pakistan (as he then was) shed light on the case of Zia-ur-Rehman v State has said court cannot accept and recognize Preamble as force to strike down any provision of the Constitution. This case was filed in 1972 when Objectives Resolution was merely a Preamble not a part of the Constitution. It was held that howsoever sacrosanct this document is but when it is not a part of the Constitution, it cannot control the other provisions of the Constitution, so it will be treated as a preamble as of other Constitution of the world.[13]
In explaining the importance of status, Mr. Justice Nasir ul Mulk has quoted a very rare speech made by Mr. Abdul Hafeez Pirzada (late) Law Minister at the time of framing the Constitution of Pakistan 1973 while explaining the status of Preamble had made a very important speech, the excerpts of that speech is being reproduced hereunder to understand the true intent of the legislature regarding the status of Preamble which is also Objectives Resolution[14]:-
“Preamble essentially is not an operative part of the Constitution. Preamble is a preamble which makes manifestation of intention on the part of Legislature. In the past some people have claimed the preamble which reflects the Objectives Resolution of the first Constituent Assembly of Pakistan of 1949 as the grundnorm (sic) making the crest of the Constitution subservient to the preamble. This is not the correct position. Preamble cannot be relied upon for the purposes of interpretation or enforcement of the Constitution is absolutely clear. This view was always the accepted view and only lately, in a case, the Supreme Court of Pakistan has reaffirmed this position that preamble is not a grundnorm (sic). We have also got some cases in which judgement has been delivered by a superior court in Pakistan whereby it is said that by virtue of the preamble, Judges of the High Courts, without disrespect to them, derived some divine power under the preamble to supersede the Constitution. I would like to categorically state that nothing could be more wrong than this… Therefore, the preamble at best serves as what is supposed to be manifestation of intention, nothing beyond that. And only where the language is incapable of interpretation can the manifestation of intention be looked upon. Once that is done, that is the end. Preamble does not serve any purpose beyond this. It cannot be over-riding, it cannot be dominant, it cannot make Constitution subservient to the language and the preamble. It is not a supra-Constitutional document or instrument as has been stated in the past in a judgement which now we have reversed through a judgment of the Supreme Court. So Sir, this I would like to go on record that preamble although contained in a Constitutional document, is not part and parcel of the operative portion of the Constitution so as to govern the rules of interpretation with regard to the Constitution.”
Objectives Resolution as Preamble
Asma Jillani Case, Zia ur Rahman v State and State v Zia ur Rahman Cases
The first time the question of grundnorm or basic structure/features came up before the Supreme Court in Asma Jillani case[15] wherein Chief Justice has expressed that if he needs to find out the grundnorm then he need not to find this concept in Western philosophy, whereas we have preamble that guides us, sovereignty over entire universe belongs to Allah Almighty alone and this authority shall be exercised through the chosen representatives as a sacred trust.[16] In the words of Chief Justice Hamoodur Rahman:-
“In any event, if a grundnorm is necessary, Pakistan need not have to look to the Western legal theorists to discover it. Pakistan’s own grundnorm is enshrined in its own doctrine that the legal sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority exercisable by the peoples within the limits prescribed by Him is a Sacred Trust. This is an immutable and unalterable norm which was clearly accepted in the in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th March 1949.”
In the case of Zia ur Rahman v The State,[17] encouraged by these observations a learned Judge of the Lahore High Court sought to highlight their significance in the following words:-
“The State of Pakistan was founded through the expression of will of the Muslims of the sub-continent. The emergence of this State cannot be delinked from its ideology for the preservation of which all our past and future generations are equally involved. No one generation, community, organ or individual in this State has any power to undo the same or weaken its foundation in so far as its basic realities are concerned. This underlying philosophy has been stated in a supra- Constitutional instrument to which not only our founding fathers but also the people at different times of our short history have assented. It is the Objectives Resolution passed in 1949. All the Constitutional documents intended to work as permanent Constitutions were purported to have been based on this Supra “Constitution.”
By this opinion in Asma Jillani case, one of the High Court, Justice Afzal Zullah in Zia ur Rahman case[18] has ambitiously construed that Objectives Resolution has a Supra-Constitutional power to strike down any provision of the Constitution on the touchstone of resolution and declared that laws and Constitutional provisions should be brought in conformity with the Objective Resolution in Zia-ur-Rahman v State.[19] But when the matter was brought before the Supreme Court in the case of State v Zia ur Rahman[20], Chief Justice Hamoodur Rahman explained and removed some ambiguities cropped in his earlier judgment, while explaining his views and dispelling the image that was wrongly construed by the Lahore High Court Judge. It was held that:-
“So far as the Objectives Resolution of 1949 is concerned, there is no dispute that it is an important document which proclaims the aims and objectives sought to be attained by the peoples of Pakistan; but it is not a supra-Constitutional document, nor is it enforceable as such, for, having been incorporated as a preamble: It may be looked at to remove doubts, if the language of any provision of the Constitution is not clear, but it cannot override or control the clear provisions of the Constitution itself.”
In the same case, while summing up the discussion the learned Chief Justice observed:-
“It was expected by the Objectives Resolution itself to be translated into the Constitution. Even those that adopted the Objectives Resolution did not envisage that it would be a document above the Constitution. It is incorrect, therefore, to say that it was held by this Court that the Objectives Resolution of the 7th of March, 1949, stands on a higher pedestal than the Constitution itself. The views of the minority of the learned Judges in the High Court, in so far as they have sought read into the judgment of this Court something which is not there, cannot, therefore, be supported.
In this connection, I would also like to point out that even if the Objectives Resolution is treated as a document from which the makers of the Constitution must draw inspiration and seek guidance, then too, there is nothing in the Interim Constitution to show that any of the ideals laid down in the Objectives Resolution has been violated. Indeed, the Interim Constitution itself more-or-less faithfully reproduces the Objectives Resolution of 1949 as its own preamble in the same manner as the Constitution of 1956 did. It cannot, therefore, be said that any provision of the Interim Constitution of 1972 is in violation of the Principles of the Objectives Resolution of 1949.”
The powers to amend the Constitution of Pakistan are vested with the Parliament which is the representatives of the people, since peoples cannot do make amendment in the Constitution directly or themselves, therefore for legislation they have entrusted this power to the Parliament and if any amendment is to be brought into the Court being a political question, this should be decided by the peoples through adopting prescribed procedure and forum. No unelected body including the Supreme Court of Pakistan can decide this political question. This Court in Zia ur Rahman Case has proscribed the Court to decide political question and held that:-
“This does not, however, mean that body having the power of framing a Constitution is “omnipotent” or that it can disregard the mandate given to it by the people for framing a Constitution or can frame a Constitution which does not fulfil the aspirations of the peoples or achieve their cherished objectives political, social or economic. These limitation on its power, however, are political limitation and not justiciable by the Judiciary. If a Constituent Assembly or National Assembly so acts in disregard of the wishes of the peoples, it is the people who have the right to correct. The Judiciary cannot declare any provision of the Constitution to be invalid or repugnant on the ground that it does not fulfil the aspirations or objectives of the people. To endeavour to do so would amount to entering into the political arena which should be scrupulously avoided by the Judiciary. With political decisions or decisions on question of policy, the Judiciary is not concerned.”
The learned Chief Justice Hamoodur Rahman went on to add:-
“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 even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to. interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court……….”
Justice Hamood ur Rahman held in the case of State v Zia ur Rahman[21] that since Objectives Resolution was not a part of Constitution, therefore it cannot control the provisions of the Constitution. Through his opinion, some peoples thought if Objectives Resolution is made the substantive part of the Constitution then it might be able to control the provisions of Constitution and Islamize the Constitution. But this hopes faded away when Chief Justice Nasim Hassan Shah as he then was, in Hakim Khan v Government of Pakistan[22] has categorically rejected the view that Objectives Resolution can control the other provisions of the Constitution. He narrated the history of the resolution and accepted that though it is a very important document in the Constitutional and political history of Pakistan but still it has no power to control the provisions of Constitution and no provisions can be struck down on the touchstone of the Objectives Resolution.
Objectives Resolution as Article 2A
Hakim Khan, Kaniz Fatima, Mahmood Khan Achakzai, Zafar Ali Shah, Wukla Mahaz barai Tahfuz Dastoor, Pakistan Lawyers’ Forum, Al-Jehad Trust, Pir Sabir Shah and other Cases
The important case of Article 2A that came up before the courts of Pakistan was Hakim Khan[23] wherein Presidential powers to commute, pardon and remit etc under Article 45 were challenged. The facts of the case were that Benazir Bhutto on assuming power as Prime Minister of Pakistan gave advice to the President to issue “Commutation Order” to pardon, commute and remit all those convicted by military courts by Zia’s Martial Law Regulations. The President on 4th/8th December 1988 issued commutation order to commute, pardon and remit the sentence awarded by military courts. This action was challenged in Lahore High Court and in a decision which decided the case recognized controlling power of Article 2A, and declared that other provisions of the Constitution could be controlled by Article 2A.
In this case, inter alia, this was decided that President cannot commute, pardon and remit, the sentence in Hadd cases relating to Qisas and Diyat. In these cases only legal heirs of deceased can do so. But President under Article 45 of the Constitution can commute, pardon and remit sentence under Tazir punishment. Justice Shakoor ul Islam while writing a separate note posed a question that whether President of Pakistan can pardon, commute and remit in Hadd cases, he answered in negative and held that:
“Our answer to this question in the light of the judgments and principles of the Holy Book as laid down in the Oisas and Diyat Ordinance s in the negative. The President of Pakistan had no such power to commute the death sentences awarded in matters of Hudood. Oisas and Diyat Ordinance. In this view of the matter, we are of the view that the power of pardon in such cases only vests with the heirs of the deceased. Therefore, the cases in which death sentences have been awarded, the President had no Rower to commute, remit or pardon such sentences. However the cases would be on different footings if a person has been punished by way of Ta’zir as in such cases, the Head of the State has the power to pardon the offender and that too in public interest”. It may however, be noted that in the cases in hand the President had commuted the sentences of death to imprisonment for life which were imposed not as Qisazsbut as Ta’zir under the ordinary criminal law before the enforcement of the Oisas and Diyat Ordinance. Therefore, there was no occasion per the formulation to annul the President’s Order.”
In the same judgement, Chief Justice Nasim Hassan Shah who wrote main judgment, while giving detailed history of Objectives Resolution recognized the importance of resolution but refused to give powers that it could strike down or control other provisions of the Constitution. It was held that:
“Accordingly, now if any question is raised in connection with the validity of any existing provision of the Constitution on the ground that it transgresses the limits prescribed by Allah Almighty (within which His people were competent to make laws) such a question on only be resolved by the Majlis-i-Shoora (Parliament), which can, if the plea is well founded, take the necessary remedial action by making suitable amendments in the impugned provision in order to bring it within the limits prescribed by Allah Almighty.
Accordingly, in the instant case, if the High Court considered that the existing provision of Article 45 of the Constitution contravened the Injunctions of Islam in some respects it should have brought the transgression to the notice of the Parliament which alone was competent to amend the Constitution, and could initiate remedial legislation to bring the impugned provision in conformity with the Injunctions of Islam.”
The next immediate case after Hakim Khan before Supreme Court was Kaniz Fatima v Wali Muhammad[24]wherein Justice Saleem Akhtar relying on the earlier case of Hakim Khan held that:
“As is obvious from the aforesaid weighty observations, Article 2A cannot be pressed into service for striking down any provision of the Constitution on the grounds that it is not self-executory and also that another provision of the Constitution cannot be struck down being in conflict with any other provision of the Constitution.”
In Mahmood Khan Achakzai Case,[25]the 8th Amendment came under challenge including 58 (2)(b) which is no more part of the Constitution. Mr. Justice Sajjad Ali Shah, the then Chief Justice of Pakistan while writing for the Court recognized some of the Salient Feature of the Constitution and declared that there are inherent implied restriction on Parliament to amend the Constitution. On the one hand Chief Justice Sajjad Ali Shah accepted that under Clause 6 of Article 239, there is no any restriction on the Parliament but went on to say that amendment to the Constitution is subject to Salient Features or Basic Structure Theory of the Constitution which include Federalism, Parliamentary Democracy and Islamic Provisions of the Constitution, as envisaged in Preamble/Objective Resolution are to be remained untouched.[26]But, other main judgement was written by Justice Saleem Akhtar wherein he has denied the basic structure theory.[27] Justice Saleem did not accept or give a chance to others that he will accept the Basic structure theory of the Constitution. He categorically denied accepting this theory as the part of the Constitution. While adopting that ratio and jurisprudence produced in Zia ur Rahman case held that:
“34. It can thus be said that in Pakistan there is a consistent view from the very beginning that a provision of the Constitution cannot be struck down holding that it is violative of any prominent feature, characteristic or structure of the Constitution. The theory of basic structure has thus completely been rejected. However, as discussed hereunder every Constitution has its own characteristic and features which play important role in formulating the laws and interpreting the provisions of the Constitution. Such prominent features are found within the realm of the Constitution. It does not mean that I impliedly accept the theory of the basic structure of the Constitution. It has only been referred to illustrate that every Constitution has its own characteristics.”
In the same case, Justice Saleem Akhtar while diluting upon on the Basic Structure Theory has rejected the view presented by the petitioner, that Amendment can be struck down on the touchstone of it. He explained that there are Basic feature of the Constitution but it does mean only to explain the intent of legislature. Therefore no such features can be considered as to controlling powers. Chief Justice Nasir ul Mulk, while mentioning the Mahmood Khan Case, raised a very important point of Para 2 of the Short Order a very conclusive opinion was given wherein the doctrine of basic structure of the Constitution was rejected and considered merely an academic theory. In this case, it has never HELD that basic features of the Constitution have such power to strike down any provision of the Constitution.[28] It was held that:-
“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 Eighth Amendment.”
In Pir Sabir Shah case[29], under Article 234, the then NWFP (now KPK) Governor was directed to assume the Provincial power by virtue of Presidential Proclamation was challenged and various Indian cases on the subject were placed during argument in the support but Supreme Court held as under:-[30]
“10. The distinction made by Indian Supreme Court between a bar of the jurisdiction provided by the original Constitution of India and a bar of Jurisdiction subsequently incorporated by amending the Constitution highlighted by Mr. Sharifuddin Pirzada has not been pressed into service by the Superior Courts in Pakistan. It is true that this Court has not declared any amendment in the Constitution as ultra vires on the ground that it was violative of the Basic Structure Theory of the Constitution. In other words in Pakistan above theory has not been accepted.”
In the wake of military coup by General Pervaz Musharraf in October 1999, Senator Syed Zafar Ali Shah, Senior Advocate of Supreme Court has filed a case against the coup. The Supreme Court upheld the military take over and granted General Musharraf power to amend the Constitution, meanwhile the Supreme Court was also mindful while granting amending powers to a military dictator hence imposed some of the restrictions to amend in basic structure features of the Constitution. This judgment was condemned by the legal fraternity because through this judgment doctrine of necessity was once again resurrected and the powers of legislation which is the exclusive domain of Parliament, and Supreme Court even cannot exercise that power, how can Supreme Court delegate/grant powers to the dictator to amend the Constitution which it does not have itself. But in the case of 18th Constitutional Amendment, the Supreme Court neither strike down the Amendment nor rejected but referred the matter to the Parliament for reconsideration as per direction given by it and Parliament amended the Constitution through 19th Constitutional Amendment as per the directions of the Supreme Court, Nadeem Ahmed v Federation of Pakistan.[31]
“57. The conclusion which emerge from above survey is that prior to Syed Zafar Ali Shah case, the was almost three decades of settled law to the effect that even though there were certain Salient Features of Constitution, no Constitutional Amendment could be struck down by the Superior Judiciary as being violated 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 peoples not the Courts. A Constitutional Amendment posed a political question, which could be resolved only through normal mechanisms of parliamentary democracy and free elections.”
In another case of Justice Khrushid Anwar Bhinder v Federation of Pakistan[32] the same question also confronted pertaining to the status of Objectives Resolution or Salient Features of the Constitution. The Court in very unambiguous manner decided that though Objectives Resolution is an important instrument and should be kept in mind while deciding the cases but nevertheless dilated upon it in the following words:
“The Objectives Resolution remained a subject of discussion in various judgments and the judicial consensus seems to be that while interpreting the Court, the Objectives Resolution must be permanent to the mind of the Judge and where the language of the Constitutional provision permits exercise of choice, the Court must choose that interpretation which is guided by the principles embodied therein. But that does not mean, that Objectives Resolution is to be given a status higher than that of other provisions and used to defeat such provisions. One provision of the Constitution cannot be struck down on the basis of another provision.”
[1] PLD 1972 SC 139.
[2] PLD 1998 SC 1263.
[3]Butt, Tariq, “The News” of Sunday, August 09, 2015
[4] PLD 1997 SC 426
[5]Malik, Mohsin Raza, “The News”, February 27, 2015.
[6] Ibid
[7] PLD 2005 SC 719
[8] AIR 1973 SC 1461.
[9]Ibid at Footnote No.25.
[10] Mohsin Raza Malik Ibid
[11] The News, 7thSeptember 2015.http://www.thenews.com.pk/Todays-News-6-338616-SC-tolerated-military-courts-due-to-war-like-situation-SM-Zafar last accessed on 28th September 2015.
[12]PLD 2015 SC _____ known as Military Court, Chief Justice Nasir ul Mulk opinion at Page 88 para 73.
[13] State v Ziaur Rahman, PLD 1973 SC 49.
[14] Military Court, at page 64 para 61.
[15] PLD 1972 SC 139.
[16] Ibid. at Para 63.
[17] PLD 1972 382 Lah.
[18] PLD 1972 Lah 382.
[19] Ibid.
[20] PLD 1973 SC 49.
[21] PLD 1973 SC 49.
[22] PLD 1992 SC 595.
[23] Ibid.
[24] PLD 1993 SC 901.
[25] PLD 1997 SC 426.
[26]Ibid at Page 49.
[27] Ibid.
[28] Ibid. at Para 49.
[29] PLD 1994 SC 738.
[30] Military Courts Judgment, opinion by Chef Justice Nasir ul Muluk.
[31]PLD 2010 SC 382.
[32] PLD 2010 SC 483.
This paper on the Basic Structure Theory consists of three parts. Part I and III are also available on the Commentary section of the website.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.
