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Islamic provisions not mentioned in declared basic structure

SC judgment

By our correspondents
August 07, 2015
ISLAMABAD: The main decision in the 18th and 21st amendments case as announced on Wednesday avoided conclusively determining all the salient features of the Constitution but did declare democracy, a parliamentary form of government and independence of the judiciary as being the salient features which can’t be altered or deleted by parliament.
The identified “salient features”, however, conspicuously missed mentioning the Islamic provisions. Some top respected constitutional and legal experts term it as an “omission” and hope that at the review stage, the Islamic structure of the Constitution will be formally included into the “salient features” of the Constitution. Others believe there was no need to mention all such features in this case.
In the main decision, it is written, “The Salient Features as are ascertainable from the Constitution including Democracy, Parliamentary Form of Government and Independence of Judiciary.” However, the past judgments as discussed in the latest verdict talked about “Parliamentary Form of Government blended with Islamic Injunctions”.
The failure to mention the Islamic provisions as being one of the salient features — which according to the judgment can’t be repealed, abrogated or substantively altered by parliament through a constitutional amendment — created doubts in many minds.
While discussing the theory of salient features in the light of the past apex court judgments, the latest ruling said, “It may not be necessary to conclusively determine the Salient Features of the Constitution, however, Democracy, Parliamentary Form of Government and Independence of the Judiciary are certainly included in the Prominent Characteristics, forming the Salient Features, which are primarily relevant for the adjudication of the list at hand.”
According to a top government legal expert, the SC did not exclude the Islamic provisions but mentioned only those “salient features” which were relevant to the case.Courts and legal experts remained divided on the theory of salient features, also known as the Basic Structure of the Constitution. This is for this first time that three characteristics of the Constitution have been clearly identified in the conclusion of the SC’s main judgment that does not include the Islamic provisions.
Former Supreme Court Judge Justice (retd) Wajihuddin Ahmad, when approached, said that the missing Islamic structure of the Constitution as being one of the salient features is an “obvious omission’, which needs to be taken care of at the review stage.
Justice Wajih said that this is for the first time that some of the basic features of the Constitution had been identified, which according to him is a positive development. He said that besides the Islamic provisions of the Constitution, there are certain other salient features that also need to be identified and declared.
He said there is no denying the fact that not only Islam has the fundamental importance in our Constitution but the father of the nation had also desired to make Pakistan an Islamic welfare state.
Constitutional expert Justice (retd) Tariq Mehmood when approached said that the apex court’s main judgment repeatedly discussed and clearly identified Democracy, Parliamentary Form of Government and Independence of Judiciary as amongst the “Salient Features” of the Constitution.
Justice (retd) Tariq said that in the judgment there has been a mention of Islamic Provisions but not reflected in the conclusive order. He believed that it might be an omission but explained that the judgment does not exclude the Islamic Provisions as one of the Salient Features of the Constitution either. “It would have been better to include the Islamic Provisions to avoid misunderstandings,” he said.
Another legal expert, Babar Sattar, said that the SC ruling indentified three “Salient Features”, which were relevant to the case but did not say that the Islamic Provisions were not among the basic structure of the Constitution.
According to Babar Sattar, the apex court ruling did rely on past judgments where there was a clear mention of the Islamic Provisions as being part of the “Salient Features”; however, there was no need to mention the same in the conclusive order for not being relevant to the case.
However, what is interesting to note is the fact mentioned in the below relevant paras of the latest ruling in which the past judgments talk about “Parliamentary Form of Government blended with Islamic Provision” as being one of the “Salient Features” but in the Wednesday’s main judgment’s conclusive part there is only the mention of “Parliamentary Form of Government”.
The para 60 and 61 of the main judgment wrote, “An overview of the judgments reproduced or cited herein above, more particularly Mahmood Khan Achakzai’s case (supra),Wukala Mahaz case (supra), Zafar Ali Shah’s case (supra) and Pakistan Lawyers Forum’s case (supra), reveal that this Court has referred to the Prominent Characteristics, which define the Constitution and are its Salient Features. Some of such Characteristics mentioned in the aforesaid judgments, including Democracy, Federalism, Parliamentary Form of Government blended with the Islamic Provisions, Independence of Judiciary, Fundamental Rights, Equality, Justice and Fair Play.
“61. It may not be necessary to conclusively determine the Salient Features of the Constitution, however, Democracy, Parliamentary Form of Government and Independence of Judiciary are certainly included in the Prominent Characteristics, forming the Salient Features, which are primarily relevant for the adjudication of the list at hand.”
In the concluding 180 para, the judgment ruled that the Constitution contains a scheme reflecting its Salient Features which define the Constitution. “Such Salient Features are obvious and self evident upon a harmonious and holistic interpretation of the Constitution. In an effort to discover such Salient Features material outside the Constitution cannot be safely relied upon.”
The SC then added, “The Salient Features as are ascertainable from the Constitution including Democracy, Parliamentary Form of Government and Independence of the Judiciary,” and ruled, “The amendatory powers of the Parliament are subject to implied limitations. The Parliament, in view of Articles 238 and 239 is vested with the power to amend the Constitution as long as the Salient Features of the Constitution are not repealed, abrogated or substantively altered.”
From this particular judgment, the indentified Salient Featrues — Democacy, Parliamentary Form of Government and Independence of Judiciary, got the judiciary safeguard from being altered, deleted or abrogated by the parliament. However, no such clear ruling is available in the case of Islamic Provisions of the Constitution, which provides the foundation for the Islamic state.