In the wake of the 21st constitutional amendment having been challenged in the Apex Court, a debate has been raging on the question that whether the Supreme Court can annul the constitutional amendment and if so, on what basis? Those who have challenged the amendment are of the view that it is against the basic structure of the constitution as it violates the fundamental rights guaranteed by the constitution. Political analysts and constitutional experts have presented a myriad of arguments both in favour and against the contention of the challengers. Pending the decision of the SC on the issue, perhaps it would be advisable to seek assistance from the constitution itself to determine the power of the parliament to amend the constitution and ascertain the jurisdiction of the judiciary in this regard, before forming an opinion on the issue. In addition to this, help could also be sought from internationally recognised principles of jurisprudence.
Article 239 (5-6) states that “No amendment of the constitution shall be called in question in any court on any ground whatever. For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Majlis-e-Shoora (parliament) to amend any of the provisions of the constitution” This article makes it abundantly clear that no amendment made in the constitution by the court is challengeable in any court and there is no limit on its powers to make any changes that it deems necessary and expedient”. As is evident, the constitution unequivocally precludes the possibility of any amendment being challenged in the court or any court venturing to contest or review the amendment on any ground whatsoever.The constitution acknowledging the sovereignty of God over the entire universe recognises the people of Pakistan as sovereign within the state of Pakistan in conformity with the limits prescribed by Him and their right to exercise this sovereignty through their chosen representatives, which is the parliament. The constitution itself is the creation of the parliament. In that respect, parliament is the mother of all state institutions that it has created through the promulgation of the constitution, which can be amended by none other than the parliament. Gumption also dictates that the will and act of the creator could not be challenged or questioned.
The judiciary is considered and viewed as the custodian of the constitution; a function that it is supposed to perform in conformity with the provisions of the constitution itself. The constitution gives judiciary the power to annul any law repugnant to the constitution using its powers of review but not any constitutional amendment. On the subject of basic structure of the constitution, there are no clear contours defined in the constitution. However, the preamble of the constitution and Objectives Resolution, which are included in constitution, do provide adequate guidance on the subject. Their careful reading helps in drawing the inference that the basic structure of the constitution is its Islamic character, which also forms the basis of the ideology of Pakistan. The parliament therefore cannot go against the will of the people by changing the Islamic character of the constitution. The 21st amendment does not purport to do any such thing. So, even if the basic structure argument is accepted, this amendment fails to qualify as a breach of the basic structure.
The argument of 21st amendment being against the basic structure of the constitution and the powers of the judiciary to review is also not justified from the perspective of internationally recognised principles of jurisprudence. One of the settled and internationally accepted principles of jurisprudence is that judges do not declare what the law should be but only what it is. They can only interpret the law and cannot act as legislators. The other principle is that courts have limited powers; the ones granted by the constitution. As we see, judges cannot make laws, only interpret them or annul them if found in violation of the provisions of the constitution. The constitution does not give the judiciary the power to challenge or strike down any amendment made in the constitution by the parliament.
It is crystal clear from the foregoing facts that no court including the SC has the power to review a constitutional amendment or go beyond the powers bestowed on it by the constitution. It is another matter that our judiciary, regrettably, is not known for going by the constitution. It has repeatedly validated martial laws on the basis of doctrine of necessity, which is not mentioned in the constitution. Not only that the judiciary has also been authorising the dictators to make constitutional amendments by arrogating the powers of the parliament for which there can be no moral or legal justification. The SC after the restoration of the deposed judges, as a result of the lawyers movement, has also been acting more as a popular court than a court of law and it has given several decisions like challenging the eighteenth amendment and over lording the parliament to bring in nineteenth amendment to accommodate the view point of the SC with regards to the appointment of judges, which is an administrative matter and a prerogative of the executive. This action of the SC was also a negation of the principle of jurisprudence that one could not sit in judgment in case relating to his/her own interests or to which one is a party.
The record amply suggests that our judiciary is capable of producing not-so-enviable marvels of jurisprudence. In the backdrop of this propensity of the apex court to throw its weight around, many legal and constitutional experts view the entertainment of petition challenging 21s amendment by the SC, as a manifestation of a raging turf war between the judiciary and the combination of the executive and the parliament. The 21st amendment which provides a constitutional cover to the establishment of military courts to try terrorists and extremist elements posing an existentialist threat to the state, is not only a pivot of the National Action Plan to quell terrorism but also a necessity-driven step to safeguard the integrity and security of the state, which in any case should be beyond any reproach and a judicial review. The security and integrity of the state should take precedence over all other things. If there were no state, there would be no constitution or judiciary. One would therefore hope that the judiciary would act in the best national interest.