Difference between Constitutional Amendment and Ordinary Legislation
The procedure and requirements of amending the Constitution and making an ordinary law is different. Therefore, an ordinary law if in violation of some of the principles/provisions of the Constitution it can be reviewed by the Supreme Court but on other hand amendment made under Articles 238 and 239 of the Constitution cannot be struck down by the Court especially if it is made by adopting prescribed procedure This difference has been made in judgment Fazal ul Qadir Case, and Justice Kaikus, writing for the Court held that: –
“Even ordinarily when in a particular document we are referring to the Constitution as well as to other laws the word “law” would have reference not to the Constitution but to other laws. In the present Constitution a clear distinction between making of laws and amendment of the Constitution has been maintained. The amendment of the Constitution appears in a separate part of the Constitution i.e. in Articles 208 to 210. There is a distinct procedure provided for amendment of the Constitution and the expression “making law” is not used with respect to such amendment either at the place where the amendment is provided for or, at any other place.”
It is very strange that Indian Supreme Court has derived the basic structure theory from above mentioned case, as has been claimed, wherein express opinion shows otherwise and drawn a distinctive line between Ordinary Legislation and Constitutional Amendment.
In Wukla Mahaz Barai Tahafuz-e-Dastoor Case, Chief Justice Ajmal Mian and Justice Saeed uz Zaman Siddiqui has explained the difference between Ordinary Legislation and Constitutional Amendment. Chief Justice Ajmal Mian held that:-
“I am inclined to hold that the words “any law” used in clause (1) and(2) of the Article 8 of the Constitution do not include any provision of the Constitution which is evident from the above referred Articles, wherein the word “Law” and the word “Constitution” have been used in contradiction. There is a well-defined distinction between “Legislative Power” and “Constitutional Power”. The above Articles apparently were framed keeping in view of the above distinction. In this view of the matter, the same cannot be as synonymous connoting the same meaning. As corollary, it must follow that the validity of a Constitutional provision cannot be tested on the touchstone of Article 8 of the Constitution.”
In the same case, Justice Saeed uz Zaman Siddiqui has candidly explained the difference between the two kinds of legislation. He held that:-
“The legislative power of the Parliament is inferior to its constituent power, therefore, Parliament exercises its legislative power subject to the constraints mentioned in Article 8 of the Constitution. Therefore, an Enactment passed by the Parliament in exercise of its legislative power can be struck down on ground of its inconsistency with the provision contained in Chapter 1 of Part II of the Constitution. However, the constituent power of the Parliament, which is at a higher pedestal, is not subject to these constraints. The power to amend the Constitution conferred on the Parliament under Articles 238 and 239 of the Constitution is in the nature of a constituent power of the Parliament. Therefore, a Bill passed by the Parliament in exercise of its power under Articles 238 and 239 of the Constitution amending the Constitution though described as an “Act” would not be subject to the same limitations as are applicable to an “Act” passed by the Parliament in exercise of its ordinary legislative power. As soon as an Act amending the Constitution is passed in accordance with the provisions of Article 239 of the Constitution and the Act receives the assent of the President as provided in the Constitution, 81 the amendment becomes an integral part of the Constitution. It is a well settled rule of interpretation that all provisions in the Constitution have equal status unless the Constitution itself provides that some of its provisions will have precedence or primacy over the other. Therefore, an amended or a new provision inserted in the Constitution as a result of the, process of amendment prescribed in the Constitution, is not a “law” within the contemplation of Article 8 of the Constitution and as such the validity of the amended or newly introduced provision in the Constitution cannot be tested on the touchstone of Fundamental Rights contained in Part II, Chapter 1-of the Constitution. It is a well settled law that the validity of a Constitutional provision cannot be tested on the basis of another provision in the Constitution both being equal in status. The doctrine of ultra vires necessarily implies that one of the two competing provisions or legislations is inferior in status to the other and the validity of the inferior provision or legislation is tested on the touchstone of the superior one. There is nothing in the language of Article 8 to indicate that the Framers of Constitution gave primacy to Article 8 of the Constitution over any other provision of the Constitution.”
Chief Justice Nasir ul Muluk while speaking for the Court has given his opinion without any hesitation and said that under Article 184 (3) of the Constitution, Supreme Court cannot strike down any amendment of the Constitution even if it violates the fundamental rights. He went on to say that the Supreme Court by Article 238 has been barred to strike down any provision and under Clause 5 of Article 239 restriction has been imposed to review the Amendment it expressly empower to the Parliament to make amendment in the Constitution and no limitations express or implied have been imposed on Parliament. The two clauses 5 and 6 of the Article 239 Constitution have been added to the Constitution through P.O. No.14 of 1985 and the same were ratified by 8th Constitutional Amendment by the Parliament. Subsequently, challenged by Mahmood Khan Achakzai, the Court rejected the petition and refused to strike down the amendment. It is the Constitutional duty of a Judge under oath to preserve, protect and defend the Constitution of Islamic Republic of Pakistan and this would obviously include the amendments in the Constitution which are made by observing the prescribed procedure. No Judge should violate the provision of Constitution because the Courts are the creature of the Constitution and a Judge cannot assume the Jurisdiction himself which has not been granted by the Constitution. In recent case of Federation of Pakistan v Durrani Ceramic and the Review Order in the same case Federation of Pakistan v. Durrani Ceramic, the extrinsic aid was not allowed to interpretation as the language of provisions in question were unambiguous. The petitions were dismissed in a very clear manner by the Chief Justice in following words:-
“To conclude, as held above, there are no limitations, express or implied on the powers of the Parliament to amend the Constitution and the amendments brought about in exercise of such power are not liable to be challenged on any ground whatsoever before any Court. 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 coram non judice, being without Jurisdiction or suffering from male fide. With this observation all petitions are dismissed.”
As to the question of Jurisdiction of Supreme Court, Mr. Justice Qazi Faez Issa, has interpreted the Clause 5 of Article 239 “No amendment of the Constitution shall be called in question in any Court on any ground whatsoever” He has at the first, decided that “any Court” excluded the Supreme Court and hence Supreme Court can review any Constitutional Amendment. But here Supreme Court is also included in the phrase “any Court” because; a Constitutional Amendment cannot be challenged in any lower Court. Further, interpretation of Constitution is the responsibility of Supreme Court. In my view, honorable Judge has erred when he said that Supreme Court is excluded from the phrase “any Court”.
Mr. Justice Saqib Nisar while summarizing his opinion said that there is vast difference between the Pakistani and Indian Constitutions. The Indian Constitution was framed by its founding fathers and special relevance with development and thought is attached to it. The honorable judge spoke in detail about basic structure theory.
The Basic Structure Theory has divided the judiciary in India itself and despite that the Indian Parliament is considered a strong Parliament but Indian Supreme Court screwed the supremacy of Parliament through this theory. The Indian Supreme Court riding over this theory has amassed unprecedented power on the pretext of basic structure theory. The judicial branch of the government being unelected is unaccountable as compare to representatives of the people who though are not good performer but are periodically answerable to the masses. Too much reliance on preamble or Article 2A to test the repugnancy of any provision of the Constitution should be resisted.
Unlike Indian Supreme Court, the Supreme Court of Pakistan has categorically refused to recognize and gave the controlling role to Basic Structure Theory of the Constitution. Throughout, the constitutional history of Pakistan, the Supreme Court remained consistent in maintaining this position and under the doctrine of Separation of Powers, it rejected this position, though time to time some individual judges accepted Salient Features but majority did refuse to recognize it. The Indian Parliament is far more mature and strong than Pakistani but Indian SC has recognized the Basic Structure Theory of the Constitution which cannot be altered or amended. In every next case, these features are ever increasing.
The Supreme Court in Pakistan, though, gave importance to Objectives Resolution as Preamble and as substantive part of the Constitution but never accepted 2A as controlling article to other provisions of the Constitution. One of the judges commented if this notion is accepted then we need to rewrite the Constitution afresh. In India strong dissenting opinion against Basic Structure Theory were voiced and rightly done so when they say every provision is important. Constitution reflects the vision of society and societies are not static therefore Constitution required to absorb changes in it to fulfill these social changes. Mr. Khalid Anwar, has pleaded that the Constitution in 2015 is far more improved due to amendments than Constitution in 1973. The amending process is meant to bring improvement in the Constitution.
The Supreme Court while validating the Military Courts has retained the power of Judicial Review by High Courts and Supreme Court against the decision by Military Courts on the ground of mala fide, coram non judice or without jurisdiction. S. M. Zafar has rightly said while giving interview to the newspaper that Supreme Court has validated the establishment of military court because of war like situation in the country and protected the misuse of military court by having judicial review power with it.
Basic Structure Theory: Since the concept of basic structure theory or salient features of the Constitution in Pakistan has been derived from Objectives Resolution and Supreme Court has been consistently declared that Objectives Resolution cannot be granted a distinctive role to strike down other provisions of Constitution. The Objectives Resolution and Article 2A are only meant to seek guidance for interpretation of statutes and framing Constitution. Because, if such sweeping powers are granted to any Article then it would necessary to re-write Constitution. So there is no such academic theory such as basic structure of the Constitutional Jurisprudence in Pakistan.
The law-making function is of Parliament and there is NO any expressed or implied restrictions on Parliament to amend the Constitution. Parliament, under Articles 238 and 239, is free to amend the Constitution and such amendment cannot be questioned in any court. Therefore Supreme Court’s power to review Constitutional Amendment is limited. The trichotomy of power or doctrine of separation of powers binds every organ of the State to work within their defined boundaries. The power to amend the Constitution cannot be entrusted to few people sitting on the superior courts who are unelected and unaccountable for their acts. On the other hand, there is a sovereign and elected Parliament which represented the whole nation, its powers cannot be curtailed on any flimsy grounds or theory.
The question of violation of fundamental rights by the military courts has been solved when Supreme Court retained the power of review from selection of cases to the decision of the military courts on any ground viz mala-fide, coram-non-judice without jurisdiction of the court or malice etc. The terrorist plagued situation of the country also justified the establishment of military courts. There is vast difference between the year 1996 when military courts were abolished by Supreme Court and in the year 2015, the situation is altogether different when we embroiled with an alien enemy who has waged a very tactical war against Pakistan and Armed Forces of Pakistan.
Improvement in Constitution: The Amendment procedure provided in the Constitution is meant to bring the Constitution in accordance with the changes in the societies and since Constitution is made for the benefit of peoples then amendments are to bring reforms in the Constitution and to improve it. Article 10A is one of the examples of that improvement in the Constitution.
Review Petition for Islamic Provisions: Though Supreme Court has tried its best to bury the question of basic structure theory once for all but this debate will continue in political and legal debate in the country and in forthcoming Review Petition numerous petitioners have hinted that they will raise the issue of Islamic Provision as basic structure theory. Because in the judgment of Mr. Justice Azmat Saeed which was agreed upon by other seven judges, did not include the Islamic Provisions as salient feature of the Constitution. Some religious parties have raised this issue and expected from Supreme Court that it will review and include it.
 Ahmad, Professor Khursheed, “Isharat: Tarjamanul Quran” September 2015.
 Military Courts Judgment at Para 68 page 79.
 Military Courts para 69, pp 81-82.
 2014 SCMR 1630.
 PLD 2015 SC 354.
PLD 2015 SC _________, known as Military Court, opinion dissenting note by Mr. Justice Qazi Faez Issa at Page 856 para 7.
Ibid, para 185 at pp 535-539.
 Ibid at para 186, opinion by Justice Saqib Nisar.
 Kesavananda Bharti v State of Kerala, AIR 1973 SC 1461.
This paper on the Basic Structure Theory consists of three parts. Part I and II 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.