The controversy persists

As one may recall, while the Supreme Court was hearing petitions challenging the constitutionality of the 18th Amendment to the constitution, many of the country’s brightest legal minds were vociferously arguing that the judiciary was not competent to examine the validity of a constitutional amendment. Ironically, some of those lawyers now want the apex court to strike down the 21st constitutional amendment for being ‘contrary’ to the fundamental law of the land. Consistency is a rare virtue.
The controversy over the power of the judiciary to look into, and shoot down if warranted, the constitutionality of a constitutional amendment – called judicial review – persists; only some of the players have shifted their stance.
The origin of judicial review is generally traced back to the early 19th century judgement of the Supreme Court of the United States in Marbury versus Madison. Chief Justice Marshall, who had authored the judgement, maintained that an act of legislature that was in conflict with the constitution was invalid and that courts had the power to declare it so.
However, in fact the power of judicial review originated centuries earlier. In ancient Greece, for instance, judges could try a law and declare it ultra vires to the fundamental law of the land.
Today it is by and large agreed that the courts have the power to examine a statute on the touchstone of constitutionality. However, opinion remains divided over the scope of this power.
In countries like the United Kingdom where the constitution is largely unwritten and unitary in character and parliament is sovereign, the courts may declare an act of parliament to be incompatible with the constitution, but as a matter of course they do not invalidate a law for being inconsistent with the constitution. In other words, the judiciary only interprets the constitution.
The situation is different in countries where a written and federal constitution limits the powers of parliament. For instance, in the US, the Supreme Court can strike down legislation enacted by Congress if it finds it to be incompatible with the constitution. In Germany, the Federal Constitutional Court is empowered to shoot down not only ordinary laws but also constitutional amendments for being inconsistent with the fundamental character of the constitution.
In India, there has been a long tussle between parliament and the Supreme Court on the scope and limits of judicial review. The 24th amendment to the Indian constitution passed in 1971 authorised parliament to amend any provision of the constitution. However, the Indian Supreme Court subsequently declared that, while parliament was competent to amend any provision of the constitution, any amendment had to conform to the basic framework of the constitution.
That prompted the government of then prime minister Indira Gandhi to introduce the 42nd amendment to the constitution during the proclamation of emergency in 1976, which stripped the apex court of the power of reviewing an amendment to the constitution. The 43rd and 44th amendments undid the provisions of the 42nd amendment regarding the power of the apex courts to judge the validity of constitutional amendments.
The constitution of Pakistan restricts the legislative power of parliament. In the first place, being a federal legislature, parliament can’t legislate on a provincial subject. In the second place, as provided by Article 8 of the constitution, no law can be made that is in conflict with any of the fundamental human rights.
In the third place, Article 227 of the constitution stipulates that no law can be made that is repugnant to the injunctions of Islam.
Finally, parliament cannot legislate contrary to the constitution, the fundamental law of the land. There are thus four main restrictions on the legislative powers of parliament. It cannot, except when a proclamation of emergency is in force, legislate on provincial subjects; and its laws cannot be incompatible with fundamental rights, Islamic injunctions and the constitution itself.
But do such limitations apply to ordinary laws only and not to an amendment to the constitution? To put it differently, does the power of judicial review extend to examining the validity of an amendment to the constitution? Those who answer the question in the negative resort to three arguments in the main.
The first argument is based on a literal reading of Article 239 (Clause 5 and 6) of the constitution. Clause (5) states that no amendment to the constitution shall be called into question on any ground in any court. And clause (6) supplements this by declaring that there is no limit whatsoever on the powers of the parliament to amend any of the provisions of the constitution.
The second argument questions the existence of the ‘basic structure’ of the constitution. A constitutional amendment can be struck down only on the ground of its being in conflict with the basic structure. But what is the basic structure of the 1973 constitution? Do any provisions of the constitution enjoy greater sanctity than the rest?
Any answer to such questions, the argument goes, will at best be arbitrary. The analogy of other constitutions, such as Germany’s, can be misleading as the German constitution states that certain ‘fundamental’ principles of the political system can’t be changed. The constitution of Pakistan does not contain any statement to this effect.
Third, it is argued that the power of judicial review, if accepted in its broadest sense, will make the Supreme Court a non-elective super-chamber. This will run counter to the principle of the trichotomy of powers.
An affirmative answer to the question must be based on the view that there is a basic structure of the constitution, which restricts the legislative competence of parliament. While parliament may be competent to amend any provision of the constitution, it must be done within that fundamental framework. The Supreme Court, being the highest court of the land, must have the last word on the constitutionality or not of a constitutional amendment.
A similar argument was put forward by the petitioners who had challenged the 18th Amendment. The centrepiece of the argument was that the method of appointments in superior courts introduced by Article 175-A undermined the independence of the judiciary and was thus contrary to the basic structure of the constitution.
In its judgement dated October 21, 2010, the apex court did not directly address the question whether there was such a thing as the fundamental framework of the constitution. The court struck a middle path by asking parliament to reconsider some clauses of Article 175-A, which parliament in the end did vide the 19th Amendment.
Before the 18th Amendment, the 17th Amendment was also challenged in the apex court for being allegedly contrary to the basic structure of the constitution In its verdict dated April 13, 2005, the court held that a constitutional amendment could only be struck down if it was not enacted as per the prescribed procedure. Thus the court brushed aside the basic structure argument.
One of the principles of jurisprudence is stare decisis (or precedents) whereby courts adhere to previous rulings on similar issues. However, stare decisis is not binding on the apex court, which means that the Supreme Court can set aside its earlier decisions. Let’s wait and see how their lordships treat the petitions challenging the constitutionality of the 21st Amendment.
The writer is a freelance contributor. Email: hussainhzaidi@gmail.com