ISLAMABAD: While the PML-N following Nawaz Sharif’s disqualification is aggressively pursuing the agenda of removing Islamic provisions of Article 62-63 from the Constitution, legally it can’t be done because of past Supreme Court decisions according to which these provisions can’t be altered or removed.
The Supreme Court has already declared Islamic provisions of the Constitution as part of its basic features, which cannot be even amended or deleted by the parliament with two-third majority.
In different SC decisions, the apex court identified basic features of the Constitution, which include the Islamic provisions of the document.
In PLD 1997 SC 426 Mahmood Khan Achakzai and others vs Federation of Pakistan and others, the SC while discussing that what is the basic structure of the Constitution said though this question is of academic nature which cannot be answered authoritatively with a touch of finality, “it can be said that the prominent characteristics of the Constitution are amply reflected in the Objective Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment”.
The judgment added, “The Objective Resolution was Preamble of the Constitutions made and promulgated in our country in 1956, 1962 and 1973. Perusal of the Objective Resolutions shows that for scheme of governance the main features envisaged are Federalism and Parliamentary Form of Government blended with Islamic Provisions.
In the Zafar Ali Shah case, the SC held, “The Constitution of Pakistan is the supreme law of the land and its basic features i.e. independence of judiciary, federalism and parliamentary forms of Government blended with Islamic Provisions cannot be altered even by the Parliament.”
In view of the importance of these basic features of the Constitution, the SC had barred General Musharraf from amending any of the basic features of the Constitution. The Court underlined, “That no amendment shall be made in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions.”
Discussing the issue of giving power to CE to amend the constitution, the SC said, “The question arises whether the chief executive can be granted unfettered powers to amend the constitution. Mr. Khalid Anwar emphasized that in case the army action is condoned/validated this Court must succinctly state whether the chief executive have powers to amend the constitution and if so, subject to what limitations. He emphasized that in the first instance power to amend the constitution should not be conceded to the chief executive and Begum Nusrat Bhutto’s case (supra) should be revisited. In case the court follows the dictum of Begum Bhutto’s case (supra), the power to amend the constitution by the Chief Executive must be stated with particularity and the fields which are not to be touched should be specifically stated. Mr. Sharifudin Pirzada argued that once the army action through extra-constitutional measure is validated, the Chief Executive should be given the power to amend the Constitution. Same view was expressed by the learned Attorney General Dr. Farooq Hassan. We are of the considered view that if the parliament cannot alter the basic features of the Constitution, as held by this Court in Achakzai’s case (supra), power to amend the constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the parliament. Clearly unbridled powers to amend the constitution cannot be given to the Chief Executive even during the transitional period even on the touch stone of ‘State necessity’ 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 the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down in the Short Order….”