In the wake of the enactment of the twenty-first Amendment to the Constitution, the apex court was seized with three significant constitutional questions: whether the Supreme Court has the authority to declare a constitutional amendment null and void? Whether there is a basic structure to the Constitution, which could serve as a criterion to strike down constitutional amendments? Is the establishment of military courts through twenty-first amendment, in violation of basic features of the constitution?

The petition challenging the 21st Amendment had been filed against the backdrop of National Action Plan (NAP) formulated after the December 16 attack on Army Public School in Peshawar. The NAP, inter alia, provided that there is a dire need to bring militants to speedy justice at which our ordinary criminal justice system has failed miserably. Notwithstanding the context of the Constitutional amendment and hence the petition, was constituted by a special challenge of terrorism faced by the country, and the questions before the Supreme Court were of broader significance. At the heart of the petition lay the question of domain of authority of the Parliament and the Supreme Court.

The majority decision was delivered by 11 judges who held that the 21st Constitutional Amendment can not be struck down, which meant that military courts will continue to operate as a parallel judicial system for the time as stipulated in the Amendment. Out of 11, three judges considered that the Parliament has unfettered power to amend the Constitution and hence they lacked the jurisdiction to rule on ‘constitutionality’ of a ‘constitutional amendment’. While eight others, though holding that military courts are constitutional, have reserved their right to judicially review a constitutional amendment.

The Chief Justice has criticized the basic structure as an alien doctrine, which should have no place in interpreting the Constitution of Pakistan. The doctrine of basic structure developed in India as a result of the struggle for supremacy between the judiciary and the parliament over interpretative finality over the Constitution.

The Chief Justice further remarked that ideas cannot be uncritically borrowed from foreign jurisdiction, without understanding the particular histories of their development or appreciating their consequences in the host jurisdiction, especially when our own jurisprudence on the said question has already been settled and for good reasons. The basic structure theory, developed by Professor Conrad, in the wake of the harrowing experience of the Nazi Germany, was adopted by the Courts of India, as a tool to create jurisprudence for ensuring their supremacy over the Parliament.

Justice Jawaad S. Khawaja, who has concluded that the Parliament cannot have untrammelled authority to change the Constitution, has written a seminal dissenting judgment. He writes, “Implicit in this argument [that there is no limit on parliamentary authority] is the proposition that it is open to Parliament even to abrogate the Constitution, to bring into place a different Constitution and in doing so, to disregard the nine commands and directives stated in the Preamble to the Constitution (reproduced below), expressly issuing from the people and stating their will.”

To reconcile the much quoted provisions of Article 239 (5) and (6) of the Constitution, that apparently oust the jurisdiction of the Court to review amendments, Justice Khawaja delves into what the word ‘amendment’ entails. And he refers to a treatise that provides, “an amendment corrects errors of commissions or omissions and it modifies the system without fundamentally changing its nature i.e. an amendment operates within the theoretical parameters of the existing Constitution.”

Justice Khawaja, also rejects the British concept of unlimited Parliamentary sovereignty, in Pakistani context. In this regard he mentions an earlier decision [Muhammad Azhar Siddique vs. Federation of Pakistan PLD 2012 SC 774] in which it was laid down “there is no justification in our dispensation, for muddying the crystal and undefiled waters of our constitutional stream with alien and antiquated, 19th Century Diceyan concepts of Parliamentary supremacy. These concepts have lost currency even in their own native lands. In the afore cited case, we have held that “it is about time, sixty-five years after independence, that we unchain ourselves from the shackles of obsequious intellectual servility to colonial paradigms and start adhering to our own people’s constitution, as the basis of decision making on constitutional issues”.

He goes on, “To deny the existence of such limits and to clothe Parliament with “sovereignty” and absolute supremacy over other State organs, will amount to creating a supra-Constitutional Parliament capable even of destroying the Constitution that created it. If Parliament is permitted to act thus, it would not, in my view, fall under the ambit of any judicial principle; it would amount to an abdication of our constitutional duty.”

Justice Khawaja expounds a new doctrine, emphasizing the nine commands of the Preamble that can provide a touchstone to strike down constitutional amendments.

He explains, “The Preamble of the Constitution is a charter comprising nine commands ordained by the people of Pakistan for all instrumentalities of the State, including the Parliament and the Judiciary. The Preamble says “it is the will of the people of Pakistan to establish an order”.

The dissenting judge sees the Preamble as the embodiment of the nation’s social contract in outline. The relationship of the People with their instrumentalities is clearly contained in the Preamble. He further considers the job of the representatives of the People, as fiduciaries, was to adhere loyally to such an architectural plan and thereby, to fulfill the fiduciary obligation owed by them to the People of Pakistan.

In short, it can be said, the ‘nine commands’ doctrine appears to be a more logical and concrete touchstone in context of Pakistan to judicially review Constitutional Amendments, without delving into an abstract exercise.