Core values of Constitution won’t be altered

ISLAMABAD: Being head of the Parliamentary Committee on Constitutional Reforms and representing all political parties having representation in the legislature, Mian Raza Rabbani, presently Senate chairman assured Parliament as well as the apex court in 2010 that core values of the Constitution including Islamic provisions would not be altered.

In the backdrop of former prime minister Nawaz Sharif’s disqualification, the PML-N is though presently enthusiastically pursuing the agenda of targeting the Islamic provisions of Article 62 63, Raza Rabbani on behalf of Parliament has already told the apex court that Parliament would not alter any core value of the Constitution including the Islamic provisions.

Despite this assurance, the apex court considered some amendments to the 18th Amendment as having targeted one of the core values of the constitution-independence of judiciary. Following the apex court’s order, Parliament had to undo some amendments to safeguard the core values of the Constitution.

In its judgment, the full court under the then chief justice Iftikhar Muhammad Chaudhry had discussed in detail the importance of the fundamental features of the Constitution to ensure that they are not altered by Parliament.

Referring to Raza Rabbani’s statement, the SC in its order challenging 18th Amendment said, “Adviser to the Prime Minister (Chairman of the Special Committee of the Parliament for Constitutional Reforms) while speaking on the floor of the National Assembly reiterated the resolve not to alter the core values of the Constitution when he said, ‘Madam Speaker! Before I go into the details of this Article, let me once again reiterate that one of the essential purposes rather two or three of the essential purposes which made up the basis for these constitutional reforms was to ensure that the fundamental principles of the Constitution are not altered.’

The 18th Amendment was primarily challenged on the ground that the amendments made by Parliament were violative of the salient features of the Constitution which according to the petitioners, included: (i) Parliamentary form of government; (ii) Democracy blended with Islam; (iii) Provision of fundamental rights; (iv) Independence of Judiciary; and (v) Federalism.

According to the SC order, “While praying for striking down the provisions under challenge, the concept of basic structure was pressed into service and it was maintained that the principle of substantive limits on the power to amend the Constitution has become a part of constitutional law in several liberal democracies. Reference was made to the judgments rendered by the Supreme Courts of India and Bangladesh where the amendments were struck down on the touchstone of basic structure.”

The SC’s full court under CJP Iftikhar Muhammad Chaudhry added, “It was submitted that the basic structure of the Constitution of Pakistan was even acknowledged by this court in Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) and Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and even in Wukala Mahaz Barai Thafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) but the court did not deem it proper to make it a touchstone to strike down a constitutional provision.”

The SC in the said order though avoided striking down the controversial amendments hitting the core values of the Constitution, referred the matter to Parliament to reconsider the amendment as per the recommendations made by the SC through the same order.

The SC order admitted, “The court is conscious that it is a creation of the Constitution which envisages, inter alia, a structure of governance based on trichotomy of powers in terms of which the functions of each organ have been constitutionally delineated keeping in view the seminal concept of separation of powers. The political sovereign i.e. the people, being trustees of a “sacred” trust in the distribution of powers under the Constitution, did not make judges supreme arbiters on issues purely political. But they wanted the judges to do ‘right to all manner of people according to law, without fear or favour, affection or ill-will’ (oath under the Constitution).”