“The Constitution is what the

Supreme Court says it is.”

– Former Chief Justice

Charles Evans Hughes

In 1787, 39 men signed the Constitution of the United States, the longest-lasting national government on paper. But any written document, like a contract, is subject to interpretation. So, how about the constitution? How should it be interpreted? Former Chief Justice Charles Evans Hughes provides a modern answer to that question. Hughes once stated in a speech in 1907 that “we are under a constitution, but the constitution is what the judges say it is.......” Today, though Hughes is dead, he leads the chorus of jurists and judicial activists that seek societal change and desire the sanction of the constitution to do it.

Prior to Syed Zafar Ali Shah’s case, there was almost three decades of settled law to the effect that even though there were certain salient features of the constitution, no constitutional amendment could be struck down by the superior judiciary as being violative 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 people, not the courts. A constitutional amendment posed a political question, which could be resolved only through the normal mechanisms of parliamentary democracy and free elections.

In Syed Zafar Ali Shah’s case, the Supreme Court held that, “we have stated in unambiguous terms in the Short Order that the Constitution of Pakistan is the supreme law of the land and its basic features, i.e. independence of judiciary, federalism and parliamentary form of government blended with Islamic provisions cannot be altered even by Parliament.” In the Mahmood Khan Achakzai’s case, the court held that Parliament did not have the power to amend the basic characteristics of federalism, parliamentary democracy and Islamic provisions as contained in the objective resolution/preamble to the constitution of 1973, which now stands as substantive part of the constitution.

The Indian Supreme Court expressed similar views in the Kesavananda vs. State of Kerala case that follows: -

“The true position,” it held, “is that every provision of the constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features:

1   Supremacy of the constitution;

2   Republican and democratic form of government;

3   Special character of the constitution;

4   Separation of powers between the legislature, the executive, and the judiciary; and

5   Federal character of the constitution.”

The net result is that, in the considered view of the Indian Supreme Court, the Indian Parliament cannot alter the basic structure or framework of the constitution.

The Kesavananda judgment is a landmark decision of the Supreme Court of India that outlined the ‘basic structure’ doctrine of the constitution. Writing for the majority, Chief Justice Sikri asserted through this doctrine that the constitution is built on a basic foundation consisting of the dignity and freedom of the individual and hence, no amendment can destroy the fundamentals rights of individuals. The ‘basic structure’ doctrine forms the basis of power of the Indian judiciary to review, and strike down, amendment to the Constitution of India enacted by the Indian Parliament that conflict with or seek to alter this ‘basic structure’ of the constitution.

The 13-judge constitutional bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and nature of the fundamental rights of an individual. The court held that while Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.

When the Kesavananda case was decided, the underlined apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived to be unprecedented. However, the passage of the 39th Amendment by Parliament proved that, in fact, this apprehension was well founded. In Indira Nehru Gandhi vs. Raj Narain, a constitutional bench of the Supreme Court used the ‘basic structure’ doctrine to strike down the 39th Amendment and paved the way for the restoration of Indian democracy.

Before the judicial revolution, a pliant Supreme Court of Pakistan had overruled the Achakzai and Zafar Ali Shah cases and disregarded the view held by the Indian Supreme Court. “The government is functioning in accordance with the constitution,” the court observed. “If the petition is accepted and 17th Amendment struck down, this entire constitutional edifice will collapse. The President, the Prime Minister, the Governors, the Chief Ministers, the Parliamentarians, the Members of the Provincial Assemblies, three Service Chiefs and Judges of the superior judiciary appointed by the President, all will cease to hold office at once. The government of the country will cease to function and total anarchy will prevail. The government under the constitution will be undone and a vacuum will be created. This is not the function of the judiciary. In short, accepting the petition and striking down the 17th Amendment would invite chaos and create a constitutional crisis. The court must allow the government to function and the institutions to gain strength and mature with time…....If the petitioners have a grievance, their remedy lies with Parliament and failing that in the court of the people and not with the court!”

This infamous judgment of the Supreme Court gives a rubber-stamp Parliament the ultimate power to emasculate the basic elements or fundamental features of our constitution. It would now be free, under the garb of amendment, to change a democratic government into a dictatorship or hereditary monarchy. It could do away with the Islamic provisions of the constitution and change the federal constitution of Pakistan into a unitary form. It could even subordinate the superior judiciary to the executive and make the Supreme Court the judicial arm of the government. In other words, it could mutilate the constitution and change it beyond all recognition. It is scary!

The judgment raises a central question: if the Supreme Court does not intervene and does not strike down such amendments, despite the fact of their inconsistency with the fundamental features of the constitution, who will? The judges of the Supreme Court are bound by their oath of office to preserve, protect and defend the constitution. The constitution places that responsibility squarely on the shoulders of the Supreme Court, which has the power, in fact the duty, to strike down any legislation enacted by Parliament which, in its view, is repugnant to the constitution.

In Pakistan, as in all federations, the Supreme Court plays a crucial role. It is the sole and unique tribunal of the nation. It is more than a usual law court. It is primarily a political institution in whose keeping lies the destiny of a great nation. The peace, prosperity, and very existence of the federation rest continually in the hands of the Supreme Court judges. Without them, the constitution would be a dead letter; it is to them that the executive appeals to resist the encroachment of Parliament; Parliament to defend itself against the assaults of the executive; the federal government to make the provinces obey it; the provinces to rebuff the exaggerated pretensions of the federal government, public interest against private interest, etc. They decide whether you and I shall live or die. The job of the Supreme Court is not to protect the system. Its job is to interpret and defend the constitution. “Fiat justitia Ruat coelum”, (let justice be done if Heavens fall). Heavens won’t fall. That is for sure. It will be morning once again in Pakistan.

The fear of conspiracy against the Supreme Court hangs heavy in the air. Counter-revolution does not give up easily. Attempts are being made to subvert the people’s will and overturn the judicial revolution. Our history can show no precedent for so foul a plot as that which this corrupt, dying regime has hatched against the Supreme Court.

On President Asif Zardari’s watch, Pakistan is fast descending into chaos and economic catastrophe. Evidence of a state tottering on the edge of complete dysfunction is apparent everywhere in Pakistan. The mood is of futility and despair. President Zardari, symbol of the unity of the federation, has declared war on the Supreme Court. One thing is clear: the true guardians of the constitution are the people of Pakistan. People power alone can protect the Supreme Court from corrupt rulers.

The writer is a retired civil servant and senior political analyst. Email: roedad@comsats.net.pk Website: www.roedadkhan.com