26-Articles by Zain Sheikh
“The Constitutional Path” by Zain Sheikh
(published in “The News”, Sunday, May 11, 2008)
In interviews telecast in “AAJ KAMRAN KHAN KE SAATH” on Geo TV on the 29th of April, 2008, eminent constitutional experts, Mr. Abdul Hafeez Pirzada and Mr. Khalid Anwar, expressed the view that the deposed judges cannot be restored by merely passing a resolution in Parliament, followed by an Executive Order to facilitate the resumption of judicial functions by them.
The bone of contention in this legal debate is the Short Order dated 23-11-2007 and Judgment dated 13-2-2008 of the Supreme Court (SC), headed by Mr. Justice Dogar. According to the legal advisors of the President, the decisions have purportedly superseded/overruled the Short Order of the SC, headed by the de jure (legal in law) Chief Justice Iftikhar Chaudhry (CJP), dated 3-11-2007 and validated the Proclamation of Emergency (PE), PCO and Oath of Office (Judges) Order, 2007 (Oath of Judges Order, 2007) and granted the President the power to amend the Constitution.
In the earlier Order of de jure CJP, the SC had declared and directed, in relevant part, that no judge of the SC or the High Court including the Chief Justices shall take oath under PCO or any other extra-constitutional steps. In this connection the Court held that : “any further appointment of the CJP and the Superior Court Judges under new developments shall be unlawful and without any jurisdiction.”
The SC, headed by Justice Dogar, held that the Judges of the Superior Courts who were not given oath (to discharge duties and perform functions in accordance with the PE, the PCO and the law), under the Oath of Judges Order, 2007, have ceased to hold office on the 3-11-2007 and their cases cannot be re-opened being hit by the doctrine of past and closed transactions.
Mr. Abdul Hafeez Pirzada is of the opinion that : (i) a Constitutional Amendment is needed in order to restore the deposed Judges of the Superior Courts; (ii) in view of the doctrine of trichotomy of powers, there can be no legislation by simple resolution of the National Assembly; and (iii) the Executive cannot “undo” the decisions of a de jure or de facto SC, by simple resolution and/or Executive Order.
With respect to his first contention, Mr. Pirzada has assumed, without foundation, that the impugned amendments to the Constitution, in the period of extra-constitutional deviation, are a fait accompli and therefore is of the view that another constitutional amendment is needed to restore the deposed Judges.
It is important to keep in mind that Article 239 of the Constitution provides the one and only method of amending the Supreme Law. Parliament is the sole authority that can make amendments to the Constitution by a 2/3 majority of the total membership of both Houses of the Majlis-e-Shoora. No other person, howsoever high, can arrogate to himself the power to amend the Constitution.
Furthermore, if the SC of Pakistan cannot amend the Constitution, it is not legally or constitutionally possible for it to delegate such power to any other holder of high office and/or validate the amendments to the Constitution purported to have been made by him. This unfortunately is exactly what the SC, headed by Mr. Justice Dogar, perversely purported to do in its decisions.
The PE holds the Constitution in abeyance and the PCO, in effect, affirms its own primacy in the Governance of the Country. The acceptance of such a legally untenable position would also have the effect of legitimizing the period of extra-constitutional deviation and all the acts of the usurper in the said period.
With respect to Mr. Pirzada’s contention that there can be no legislation by simple resolution, it is important to restate that the resolution is intended to be passed in the National Assembly, only as an expression of the will of the people. The resolution would become the moral basis for restoring the de jure Judges, by means, of an Executive Order.
It is also important to reiterate that the proposed resolution and/or Executive Order are not intended to override the decisions of the Dogar Court. As discussed later in this Article, the proceedings in the matter before the said Judges were a nullity in law and their said Order and Judgment were without jurisdiction, mala fide, in law and fact, and of no legal effect (i.e. not existing in the eye of the law). Therefore, there is no need to secure their annulment.
Furthermore, the resolution and Executive Order are not a substitute to legislation. In the example given by Mr. Pirzada, in 1993, the PML(N) government in the Punjab attempted to appoint an Administrator for Lahore through a resolution passed by both Houses of Majlis-e-Shoora. The High Court of Lahore frustrated the attempt.
However, the facts of the present case are distinguishable. Superior Court Judges are not being appointed by virtue of the proposed resolution. As stated above, the only purpose of the resolution is to morally back the Executive in restoring the de jure Judges who were unconstitutionally removed, in violation of Article 209 of the Constitution.
In support of his contention Mr. Khalid Anwar enunciated the legal proposition that an Order of a Court or its judicial interpretation cannot simply be overruled by an Executive Order. He emphasized that although he had always opposed the use of the “Doctrine of Necessity”, superseding such a Judgment by way of an Executive Order would establish a very dangerous precedent for the future.
The contentions of both the experts in the matter, beg the question at hand. One cannot just state general propositions of law out of context and without referring to the antecedent facts and circumstances, without reference to the admittedly blatant unconstitutional measures taken by a usurper.
The three (3) core issues, with respect to the modalities for restoration of the judges, are :
(i) whether the proceedings before the SC, headed by Justice Dogar, were coram non judice (i.e. not before a Court validly appointed and constituted under the Constitution) ? and, if so,
What is the legal effect of its decisions in the matter?
And, in any event,
(ii) whether the said decisions by the SC are without jurisdiction (i.e. the subject matter of the dispute was outside the field within which the court is competent to act) and mala fide?
If the answer to issues (1) and (2) are in the affirmative,
(iii) whether the Executive can simply ignore the Order of the SC, as being a nullity in law and restore the de jure judges by an Executive Order ?
The legal proposition presented by Mr. Anwar presupposes an Order, decided rightly or wrongly, passed in proceedings ‘coram judice’ (literally before a ‘judge’) or ‘before a person reputed to hold the office of a judge’, under the De Facto Doctrine (judge holding office in fact).
In the well-known treatise on administrative law by Wade and Forsyth the de facto doctrine has been described thus :
“In one class of cases there is a long standing doctrine that collateral challenge is not to be allowed; where there is some unknown flaw in the appointment or authority of some officer or judge. The act of the officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no power at all”.
If so, the Order and/or judicial interpretation cannot be set at naught merely by passing a simple resolution in Parliament and/or an Executive Order.
However, when an Order is made or judicial interpretation is given in proceedings ‘coram non judice’, (literally ‘not before a judge”) or ‘before a person who knows that he is not a judge’, it is void ab initio, due to lack of inherent power.
A forum, such as one consisting of persons purporting to hold the office of judge in violation of the Short Order of the CJP dated 3-11-2007 and by virtue of having taken oath under the PCO, an act mala fide in law and fact, is not a constitutionally constituted judicial forum and its proceedings are ‘coram non judice,’ a nullity in the eye of the law.
The admitted position, under the Constitution and precedents of the SC, is that a judge can only be removed from office under the provisions of Article 209 of the Constitution by way of a reference to the Supreme Judicial Council. However, a Judge of the Superior Court ceases to hold office of a Judge, by virtue of having taken an oath which is not compatible with holding the office of a Judge under the Constitution.
Amnon Rubinstein in his treatise on “Jurisdiction and Illegality” states at page 206 :
“A judge de facto is one acting with colour of right and who is regarded as, and has the reputation of, exercising the judicial function he assumes; he differs …..from a mere usurper of an office who undertakes to act without any colour of right……[ 1 ] In order that there may be a de facto judge, there must be an office which the law recognizes, and when a court has no legal existence there can be no judge thereof, either de jure or de facto. [ 2 ] There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office.”
There is no office of Judge of a Superior Court, under the Constitution, that gives authority to or is compatible with a person who purports to take oath as a Judge under a PCO. Therefore one can conclude that there is no such office of Judge which the Constitution and law recognizes and when a court has no existence there can be no Judge thereof either de jure or de facto.
Of course, there was no de jure Judge actually performing duties after the commencement in the period of extra-constitutional deviation. In this case, as the non functional de jure Judges of the Superior Courts were mala fidely, unconstitutionally and illegally detained in their homes and restrained from performing judicial functions, without any order, legal or otherwise, the “incumbent Judges” cannot take advantage of the wrongful action and their complicity therewith, in order to be able to claim that they are de facto Judges.
The position of PCO Judges in 2000 was protected under Article 270C of the Constitution. However, as of today and in the absence of a further valid amendment to Article 270C, by the Parliament, as mandated by Article 239, the purported “incumbent Judges”, who held the office of de jure Judges before 3-11-2007, but took oath under the Oath of Judges Order, 2007, are deemed to have abdicated and/or relinquished their office as Judges under the Constitution.
In a recent judgment, in the case Coppard v. C & E Commissioners, the Court of Appeals in England observed that :
“the de facto doctrine cannot validate the acts, nor therefore ratify the authority, of a person who, though believed by the world to be a judge of the court in which he sits, knows that he is not. We accept, on well-known principles, that a person who knows he lacks authority includes a person who has shut his eyes to that fact when it is obvious, but not a person who has simply neglected to find it out. We will call such a person a usurper.” [(2003) 3 AER 351 at p. 356].
In the light of a Coppard case, the persons purporting to hold the office of Superior Court Judges today do not even qualify as “De facto Judges”, in the eye of the law. In the circumstances, their good faith orders, judgments and decrees, certainly excluding the impugned Short Order and Judgment in this matter, will need to be validated by the Parliament.
The Coppard case has added a wrinkle to the principles governing that De facto Doctrine. In the case of a person who has taken oath under the PCO, in violation of the Short Order of the CJP dated 3-11-2007, his lack of authority is obvious to him, but he shuts his eyes to the fact. In the circumstances, neither his office nor his acts are protected. It seems that the English case has identified a new category of “judicial usurpers”, in addition to military dictators, on the cutting edge of constitutional law in Pakistan.
The decisions of the Dogar Court are, on the face of it, unconstitutional, as they validate the act of holding of the constitution in abeyance, in violation of Article 6.
Article 209 of the Constitution provides the only constitutionally mandated procedure for the removal of a judge of the Superior Courts. A reference against a judge can only be inquired into by the Supreme Judicial Council and the SC has no jurisdiction in the matter. The Order validating the removal of the de jure judges is therefore one passed’ without jurisdiction’.
This has been the consistent position of the SC in the Zafar Ali Shah case of 2000 and even in the Short Order of the Dogar Court. However, the SC in both cases declared that the cases of the de jure Judges cannot be reopened, being hit by the past and closed transaction. I am sure the double standard involved must be obvious to one and all.
The “incumbent Judges” of the SC also sat in judgment in their own cause. They validated, without due process of law, the removal of the 60 Judges, who did not take oath or were not called upon to take oath. In so doing, they were, in fact, purporting to legitimize their own oath under the PCO. The Order is ‘mala fide’ on this count as well.
In Jamal Shah’s (PLD 1966 SC 1), it was observed that an act or order, without jurisdiction is void and a nullity, that is, it is of no legal effect and has no existence in the eye of the law. And in Ronaq Ali’s case (PLD 1973 SC 236), the Court reiterated the proposition that “where an inferior tribunal or Court has acted wholly without jurisdiction……(it) has no legal effect whatsoever.”
The Executive can simply ignore it and take whatever remedial steps it deems necessary in order to restore the status quo ante i.e., restore the non-functional de jure judges to their rightful position, as of the 2-11-2007.
It was further held in Mahmud Alam’s case (PLD 1970 LAHORE 6 at page 26) that : “…….an order which is a nullity, has simply to be ignored and proceedings need not be initiated to get it annulled. In case, however, the order or action which is nullity is to be enforced against the person affected by it, that person at that time will be entitled to challenge the same on the basis of it being a nullity.”
Furthermore, the SC in Muhammad Zafar Bukhari’s case (PLD 1997 SC 351 at page 365) quoted with approval the ruling in R. v. Hollis 1819, 2 Stark. 536 wherein it was held that “a person cannot be found guilty of disobedience to an order of justices if the order was made in a matter in which they has no jurisdiction”.
In this connection twenty one (21) former judges of the Superior Courts, including five (5) Chief Justices of the SC issued a joint statement affirming that :
(a) the removal of judges under the Emergency Decree of the 3-11-2007 was unconstitutional and in violation of Article 209 of the Constitution which provides that judges of the superior courts can only be removed by reference to the Supreme Judicial Council; and
(b) only a resolution, passed by simple majority, by the National Assembly would be more than sufficient backing for the Executive to take immediate obligatory measures under Article 5 and 190 of the Constitution to reinstate the deposed judges.
In facilitating the resumption of judicial functions by the de jure judges, by means only of an Executive Order, rather than as part of a constitutional package, the Parliament will, in fact, set a salutary and seminal precedent for the future. For the first time, in the long history of martial law and/or extra-constitutional regimes in Pakistan, it will have repudiated the attempt by a military dictator to abrogate, subvert and/or hold the Constitution in abeyance.
It is absolutely imperative, if we are to end, once and for all, the cycle of successive Martial Laws, PEs and PCOs and subsequent ratification, as a fait accompli, that this time round the PE and PCO, the Oath of Judge Order, 2007 and impugned amendments should not be validated by the Parliament.
The new parliamentarians can thus seize the moment and make a niche for themselves in the annals of the constitutional history of Pakistan.
(Zain Sheikh is an Advocate of the Supreme Court)
“Amend and Win” (Article 224 of the Constitution) by Zain Sheikh
(published in “The News”, Tuesday, July 1, 2008)
“Constitutional Amendments : Setting the Record Straight” by Zain Sheikh
(published in “The News” April 8, 2008)
Venerable Justice (retd) Bhagwan Das, in his well received article entitled “Who can Alter Basic Law”, published in the Dawn on the 14th of February, 2007, has extrapolated, from the body of Pakistani case law on the Constitution, as follows :
(a) “…..On no pretext could a ‘permanent change’ in the Constitution be countenanced either at the behest of the President or a court”.
(b) The Supreme Court has conceded the power of an individual, such as the President and/or CMLA, to amend the constitution in periods of constitutional deviation.
(c) However, the validity of such amendments is coterminous with the period of constitutional deviation. They “….can have no effect after the revival of the Constitution.”
Justice Bhagwan Das made his extrapolations, from the case law and practice in Pakistan, in absolute good faith and they must be read and understood in the light of the first paragraph of his article, wherein he has clearly stated that he was only going to deal with the legal effect of the revocation of the Proclamation of emergency and PCO on the 15th of December, 2007 and not the legality or justification for the same.
Ever since the publication of Justice Bhagwan Das’ article constitutional experts have begun to refer to amendments in the Constitution passed, in accordance with Article 239 of the Constitution, by a majority of 2/3 of the total number of members of both Houses as being ‘permanent amendments’. Thus allowing one to draw the implicit inference that there exists, in law, a second category of ‘temporary amendments’ to the Constitution. Such an inference has also led experts to discuss the possible duration of such purported amendments to the Constitution.
On the 15th of March, 2008 five (5) former Chief Justices of Pakistan and Sixteen (16) retired judges issued a joint statement affirming that :
(a) the removal of judges under the Emergency Decree of the 3rd of November, 2007 was unconstitutional and in violation of Article 209 of the Constitution which provides that judges of the superior courts can only be removed by reference to the Supreme Judicial Council.
(b) the signatories were of the view that only a resolution, passed by simple majority, by the National Assembly would be more than sufficient to
authorise the Executive to take immediate obligatory measures under Article 5 and 190 of the Constitution to reinstate the deposed judges.
However, in discussing the validity of the introduction of impugned Article 270AAA, amongst others, the retired judges state that:
(a) “On no principle of State Necessity can one individual purport to make ‘permanent changes’ in the supreme law adopted by the consensus of the people.”
(b) “At most, even if an individualized power to amend were to be conceded, (by the retired judges, I presume, for the sake of argument), such power can only be available during the period of deviation/emergency and, upon restoration of the Constitution, the power to make changes as well as the effects thereof stand completely effaced unless duly indemnified by the Parliament.”
As stated, the retired judges only conceded the possibility of the Supreme Court granting the President and/or the CMLA the right to amend the Constitution in periods of constitutional deviation, for the sake of argument. In fact their view is that the amendments introduced by General Zia-ul-Haq and General Pervez Musharraf “…… had become part of the constitution only after they were adopted by a two third majority…..”.
On the issue of the legality and justification for conceding the power to amend the Constitution to an all powerful individual such as the President and/or CMLA, in periods of Constitutional deviation, suffice it to say that the line of cases, including the Nusrat Bhutto case of 1977 and the Zafar Ali Shah case of 1999, that conceded such power, did so on the basis of the flawed doctrine of necessity.
The said doctrine, at best, is one of condonation, in good faith of past and closed transactions and certainly not a legal theory for the validation of acts such as the abrogation or subversion of the Constitution or the act of holding the Constitution in abeyance and arrogating to one self the power to amend it, in blatant violation of Article 6 of the Constitution.
However, for the record, it is absolutely crucial to reaffirm that in constitutional law even the idea of ‘temporary amendments’ is a contradiction in terms. At first sight, such legal reasoning may seem appealing and advance the cause and the immediate concern for the restoration of the Judiciary. In the long run it does not auger well for the rule of law and the rational and consistent development of constitutional law in Pakistan. Commentators must adopt a consistent logical approach to the constitutional issue at hand.
There is no category of ‘temporary amendments’ in constitutional jurisprudence, for the following among other reasons :
(1) Article 239 of the Constitution provides the one and only constitutionally sanctioned method of amending the Supreme Law – a compact of the federating states of the Union. It therefore stipulates a heavily weighted majority for the passage of an amendment to the Constitution;
(2) Parliament is the sole authority that can make amendments to the constitution. No other person, howsoever high, can arrogate to himself the power to amend the Constitution.
(3) Any purported attempt to amend the Constitution by any other method and/or by any body other than the Parliament would tantamount to subversion and/or abrogation of the Constitution.
All Proclamations of Emergency, holding the Constitution in abeyance, PCOs and Constitution Amendment Orders promulgated during martial law-euphemistically called periods of constitutional deviation -fall within the category of constitutionally prohibited acts.
(4) All purported constituent documents of the extra-constitutional regime are per se ab-initio void and of no legal effect. In the circumstances, there is no question as to their interim validity and legal effect, even during the period of constitutional deviation. And in determining the legitimacy of the actions of the usurper, such as the removal of the judges of the Superior Courts, they must, of legal necessity, be disregarded.
(5) If the Supreme Court of Pakistan cannot amend the constitution, it is not legally possible for it to purport to grant and/or delegate such power to any other purported holder of high constitutional office.
(6) In Achakzai’s case the Supreme Court was of the view that the “….freedom bestowed on Parliament…..does not include the power to amend those provisions of the Constitution by which would be altered the salient features of the Constitution. And ‘Independence of Judiciary’ has been held by the Supreme Court to be a Basic Feature of our Constitution.
Such a distinction is fraught with dangerous consequences for the body of Constitutional Law. This inference has, in major part, also contributed to an anomalous, and self-defeating debate, in the print media and talk shows. The issue, whether a simple resolution and willingness of the executive to follow the mandate of the electorate to reinstate the Judges is sufficient or, an amendment to the Constitution, by a 2/3 majority, is necessary, in order to annul the purported ‘temporary amendments’, including the Oath of Office (Judges) Order, 2007 and notifications issued pursuant thereto, is a red herring.
The newly elected Parliament must refuse to validate such Acts of a usurper in uniform. In all probability, in accordance with the Muree declaration of the 9th of March, 2008, the Parliament will pass a simple resolution for repudiating the purported amendments to the Constitution and facilitating the resumption of judicial functions by Judges of the Superior Courts.
Pursuant to the passage of the resolution, the Government, by Executive Order, will perform its obligation, under Article 190 of the Constitution, and act in aid of the Judges of the Superior Courts in so resuming their judicial functions. Any attempt to reinstate the judges, as part of an over all package of Constitutional amendments, would only serve to emphasise the fallacious categorization.
The perpetuation of such a constitutionally untenable distinction is more than likely to encourage military adventurers, in the future as well, to impose martial law, abrogate and/or hold the Constitution in abeyance and again secure the power to amend the Constitution from the Supreme Court.
(Mr. Zain Sheikh is an advocate of the Supreme Court)
“The Flawed Doctrine of Necessity by Zain Sheikh
(Published in “The Daily Dawn”dated January 8, 2008).
ARTICLE 232 of the 1973 Constitution authorizes the president to issue a proclamation of emergency if, at any time, he is satisfied that the security of Pakistan is threatened by internal disturbance.
However, the proclamation issued no Nov 3 was an unconstitutional and anomalous exercise of power in that the order held the Constitution itself in abeyance and was signed by Pervez Musharraf in his capacity as COAS.
The purported validity of this extra-constitutional regime is based on the Provisional Constitutional Order 2007 issued on the same day. The PCO, as amended, inter alia suspended fundamental rights and authorized the president to amend the Constitution and other laws.
The Oath of Office (Judges) Order 2007 was issued on Nov3. About 60 judges of the superior courts were subsequently removed form office. A few weeks later the president amended the Constitution to introduce Article 270AAA which validates and affirms the Judges Order 2007 and all amendments in the Constitution.
In recent petitions challenging the emergency and the PCO, the Supreme Court validated the regime, considering the purported constitutional cover for the removal of judges to be a past and closed transaction. The court also authorized the president to amend the Constitution as he deemed necessary.
On Dec 15, President Gen (retd) Pervez Musharraf withdrew the emergency and the PCO. If the starting point of any Constitutional analysis is judicial recognition of the de facto extra-constitutional regime, predicated on the doctrine of state necessity, the mere revocation of the emergency and the PCO would only have the effect of reviving the Constitution with the provision for protection against the removal of judges, under Article 270AAA, still intact. The president now claims that only the next parliament can restore them.
In the seminal judgment in the case of Ex parte Milligan (1866), Justice Davis of the US Supreme Court observed that “The Constitution of the United States is a law for the rulers and the people, equally in war and in peace…. The government, within the constitution has all the powers granted to it, which are necessary to protect its existence; as has been happily proved by the result of the great effort to throw off its just authority”.
In view of the penchant of out rulers to revert to extra-constitutional measures and the ingenuity of its legal draftsmen in holding the Constitution in abeyance rather than abrogating it, the observation of Justice Davis is a lesson every Pakistani must take to heart .
After the adoption of the Constitution in 1973, General Ziaul Haq in his military takeover in 1977 issued the Proclamation of Martial Law and the CMLA Order 1 of 1977 on July 5. Pursuant to the Order, notwithstanding the abeyance of the provisions of the Constitution, Pakistan was subject to any orders by the CMLA, to be governed, as closely as possible, in accordance with the Constitution. The president also issued Order 1985 (RCO), whereby Article 270A was incorporated in the Constitution. The Article validated all orders passed by the military. In spite of the validation of his extra-constitutional regime by the Supreme Court, the president prevailed upon the partyless parliament to pass the Constitution (Eight Amendment) Act 1985 on Nov 11, ratifying all amendments made in the period of constitutional deviation to complete transition to the constitutional path.
In 1999, in the second period of constitutional deviation, General Pervez Musharraf did not declare martial law. He followed the same course by assuming the office of chief executive (CE) and first issued the emergency and the PCO on Oct 14. Pursuant to this Order as well, Pakistan was subject to any orders of the CE, to be governed as closely as possible in accordance with the Constitution.
Thereafter came the Legal Framework Order 2002 (LFO), which incorporated Article 270AAA in the Constitution with the express purpose of validating all extra-constitutional orders and laws made by Gen Mushrraf. And in spite of the validation of his extra-constitutional regime b the Supreme Court, Fen Musharraf also sought to manipulate parliament into passing the 17th Amendment Act, 2003, thus ratifying and completing the transition to the constitutional path.
If the history of our constitutional deviations is a guide to the future, our present rulers will also, of necessity (no pun intended), finally attempt to secure ex post facto validation of all current extra-constitutional measures by the new parliament.
The major political parties, in part due to their own compulsions, have now decided not to boycott the elections. Civil society must proactively attempt to persuade the parties to resolutely refuse to validate the purported amendments to the Constitution. Without such ex post facto validation they will remain void ab initio, a nullity in the eye of the law.
All that is necessary to effect a restoration of the remove judges is for parliament to pass a resolution, by simple majority, rejecting all the purported amendments to the Constitution, including the Judges Order 2007, with retrospective effect on the following grounds:
(i) the right to make amendments in the Constitution is the also prerogative of parliament;
(ii) the purported amendments to the Constitution are, per se, violative of Article 239 (requirement of 2/3 majority of amendments);and
(iii) the purported amendments also violate a salient feature of the Constitution, namely independence of the judiciary which parliament is bound to protect and preserve.
In Achakzai’s case of 1977, the Supreme Court was of the view that “it would suffice to say that freedom bestowed upon the Parliament….. does not include power to amend those provisions of the Constitution by which of the Constitution”
And in the Zafar Ali Shah case, the Supreme Court held: ” if basic features of the Constitution, power to amend the Constitution cannot be conferred on the CE of the measure larger than that which could be exercised by the Parliament. Clearly, unvridled powers to amend the Constitution cannot be given to the CE even during the transitional period even on the touchstone of ‘state necessity”.
In the case of Ex parte Milligan, Justice Davis concluded that “No doctrine involving more pernicious consequences was ever invented by the wit of man that the any of [the US constitution’s] provisions can be suspended during any great exigencies of government. Such a doctrine leads directly to anarchy of despotism, but the theory of necessity on which it is based is false”.