MAHMOOD KHAN ACHAKZAI AND OTHERS
FEDERATION OF PAKISTAN AND OTHERS
Per Sajjad Ali Shah, C.J.
(a) Constitution of Pakistan (1973) Article 2A and Preamble.
What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment.
The Objectives Resolution was Preamble of the Constitutions made and promulgated in our country in 1956, 1962 and 1973. Perusal of the Objectives Resolution shows that for scheme of governance the main features envisaged are Federalism and Parliamentary Form of Government blended with Islamic provisions. The Eighth Amendment was inserted in the Constitution in 1985, after which three elections were held on party-basis and the resultant Parliaments did not touch this Amendment, which demonstrates amply that this Amendment is ratified by implication and has come to stay in the Constitution unless amended in the manner prescribed in the Constitution as contemplated under Article 239. Article 58(2)(b) brought it the Constitution by the Eighth Amendment, which maintains Parliamentary Form of Govenrment has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed.
In the result the two Civil Appeals Nos. 397-K/90 (Abdul Mujib Pirzada v. Federation of Islamic Republic of Pakistan), 399-K/90 (Haji Ahmed v. Federation of Pakistna and others), and three Constitutional Petitions Nos. 60/96 (Mahmood Khan Achakzai v. President of Pakistan v. President of Pakistan and others), 67/96 (Habibul Wahabul Khairi v. Federation of Pakistan and others) and 68/96 (Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan and others) are dismissed.
All the seven Judges on the Bench subscribed to the short order reproduced above but Mr. Justice Zia Mahmood Mirza expressed his desire to write his reasons separately while agreeing with conclusions and his note is reproduced as under :-
“I only agree with the conclusion that the appeals and Constitutional petitions mentioned in para. 4 merit dismissal for which I shall separately record my reasons in detail.” [p. 446, 447] B
There is no dispute about the fact that basic structure as such categorically and specially is not mentioned in the Constitution of 1973 but i can be presumed from reading the Articles in the Constitution as a whole and also preamble to find out the intention of Constitution-makers as to what type of system of governance was contemplated in the Constitution. In order to find out the basic structure of 1973 Constitution, comparison cannot be made with the Indian Constitution for the reason that Indian Constitution provides for Sovereign Socialist Secular Democratic Republic. The other factors mentioned in the preamble of the Indian Constitution are:—
Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equility of status and opportunity;
and to promote among them all
Fraternity assuring the dignity of the individual and the unity and integrity of the Nation;
In the Indian Constitution two provisions are very important for discussion on the subject of basic structue of the Constitution. Fundamental Rights are contained int eh Indian Constitution in Part III from Articles 12 to 35. Article 13 in the original form before amendment declares laws void if found inconsistent with fundamental rights and further defines “law” including ordinance, order, bye-law, rule, regulation and so on and “law in force”. Article 368 in its original form before amendment provided, procedure for amendment of the Constitution to be initiated by the introduction of Bill and further required ratification by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule, if amendment was sought to bring a change in Articles 54, 55, 73, 162, 241 or Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI or any of the lists in the Seventh Schedule and so on, While interpreting relevant provisions of the Constitution, Supreme Court of India held that an act of Parliament duly passed under Article 368 would be valid even if it curtailed any of fundamental rights conferred by Part III of the Constitution on the ground that such act would come under the expression “law” in Article 13(2). [p. 448, 449] C & D
Study of Constitutions of different countries shows that Constitutions are always made and promulgated keeping in view objective conditions and socio-economic requirements and sometimes in such Constitutions is provided specifically as to what the basic structure is and what is allowed to be amended or not amended on the ground that it wuold be contrary to the basic structure. Normally, in the Constitution provision is amde for amendment of the Constitution and procedure is also provided therein for such purpose. In the Constitution of United States certain amendments to the Constitution are regarded to be within the exclusive purview of the Congress and the Supreme Court has refused to interfere with them on the ground that doing so would amount to entering into political questions as in respect of such matters the Court has no power of judicial review. [p. 454] E
One thing is beyond dispute that in all the three Constitutions Objectives Resolution is common and the same whcih has been incorporated as preamble in all the three Constitutions including the Constitution of 1973. Since this Objectives Resolution is very important and is the sheet anchor of our Constitution because it reflects aspirations of the people of Pakistan as to what they want and how they want to be governed, hance it is reproduced in extenso as under :
Whereas soverignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust;
This Constituent Assembly representing the people of Pakistan, resolves to frame a Constitution for the sovereign independent State of Pakistan;
Wherein the State shall exercise its powers and authority though the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and the Sunnah;
Wherein adequate provision shall be made for the minorities to profess and practise their religion and develop their cultures;
Wherein the terriroties now included in or in accession with Paksitan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries, and limitations on their powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights including equality of status, of opportunity before law, social, economic and political justice and freedom of thought, expression, belief, faith, worship and association, subject to law and publci morality;
Wherein adequate provision shall be made to safeguard the legitimate interest of minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and made their full contribution towards international peace and progress and happiness of humanity.” [p. 455, 456] F
It is not necessary to dilate upon the case of Ziaur Rehman any further for the reason that at present we are concerned only with Objectives Resolution in the Constitution appended as preamble. Even in that capacity it invariably has remained preamble in all the four Constitutions including the Interim Constitution of 1972 and therefore, it has to be read for the purpose of proper interpretation in order to find out as to what scheme of governance has been contemplated. Let us assume that it does not authoritatively provide grund norm and also it does not describe specifically the basic structure of the Constitution, even then also it does help in interpreting and understanding the scheme of governance and salient features of the Constitution which are described therein including Islamic provisions, federalism and parliamentary form of Government and fully securing independence of judiciary. Islamic provisions are very much embedded in the Constitution of 1973 as Article 2 thereof envisages that Islam shall be that State religion of Pakistan and Article 227 provides that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. Further Article 228 provides for setting up Council of Islamic Ideology. Similar provisions existed in ARticles 197 and 198of the Constitution of 1956 and Articles 199 to 207 of the Constitution of 1962. Similar Islamic provisions existed int he Interim Constitution of 1972 from Articles 251 to 259. In nutshell it can be said that basic structure as such is not specifically mentioned in the Constitution of 1973 but Objectives Resolution as preamble of the Constitution and now inserted as the substantive part in the shape of Article 2-A when read with other provisions of the Constitution reflects salient features of the Constitution highlighting feeralism, parliamentary form of Government blended with Islamic provisions. [p. 458] G
(b) Constitution of Pakistan (1973) Article 239 [as substituted by Revival of Constitution of 1973 Order (14 of 1985)]—
In the Constitution of 1973 in its original form Article 238 provides for amendment of the Constitution and Article 239 lays down the procedure for such amendment and is composed of seven clauses. Clause (7) provided that a Bill to amend the “Constitution whcih would have effect of altering the limits of a Province could not be passed by the National Assembly unless approved by resolution of Provincial Assembly of that Province by votes of not less than two thirds of total membership of that Assembly. This shows anxiety of the Constitution-makers of that time not to make it easy to alter the limits or boundaries of a Province unless Assembly of that Province consented with votes of not less than two-thirds of the total membership of that Assembly. This anxiety was justified in the aftermath of loss of East Pakistan. Article 239 was amended by P.O. No. 20 of 1985 and substituted by P.O. No. 14 of 1985 which are protected for validity by Constitution (Eighth Amendment) Act No. XVIII of 1985. Apart from other amendments in Article 239, the major amendment is in clause (6) which is substituted by fresh provision providing that for removal of doubts, it is hereby declared that there is no limitation whatever on the power of Majlis-e-Shoora (Parliament) to amend any provision of the Constitution. We are going into the question of validity of the Constitution (Eighth Amendment) Act, 1985, later but for the time being it would suffice to say that freedom bestowed upon the Parliament in clause (6) of Article 239 after amendment does not include power to amend those provisions of the Constitution by which would be altered salient features of the Constitution, namely fedealism, Parliamentary Form of Government blended with Islamic provisions. As long as these salient features reflected in the Objectives Resolution are retained and not altered in substance, amendments can be made as per procedure prescribed in Article 239 of the Constitution. [p. 458, 459] H
Article 239 cannot be interpreted so liberally to say that it is open-ended provision without any limits under which any amendment under the sun of whatever nature can be made to provide for any other system of governance, for example, monarchy of secular, which is not contemplated by the Objectives Resolution. Clause (6) of Article 239 provides for removal of doubt that there is no limitation whatsoever on the power of Parliament to amend any provision/provisions of the Constitution. It therefore, follows that Parliament has full freedom to make any amendment in the Constitution as long as salient features and basic characteristics of the Constitution providing for Federalism, Parliamentary Democracy and Islamic provisions are untouched and are allowed to remain intact as they are. [p. 480] K
(c) Constitution of Pakistan (1973) Article 58(2)(b)
Much has been said against Article 58(2)(b) of the Constitution that it has changed the shape of the Constitution from Parliamentary to Presidential and has concentrated powers in the hands of the President who is not directly elected as is Prime Minister. Perusal of the Constitution, as it is, shows that it is not so and the apprehension is unfounded for the reason that this provision has only brought about balance between the powers of the President and the Prime Minister in Parliamentary Form of Government as is contemplated under Parliamentary Democracy. There is nothing unusual about it and such provisions enabling the President to exercise such power can be found in various Parliamentary and Democratic Constructions like Australia, Italy, India, France and Protugal. In fact Article 58(2)(b) has shut the door on Martial Law for ever, which has not visited as after 1977. The country is entering into 21st century still at the threshold as a developing country with many serious problems as items high on our agenda including economic morass. We have to fix our priorities with extra caution and progmatism. If it is stated that Eighth Amendment was brought in by Parliament which was not elected on party basis then after that three elections took place on party basis in 1988, 1990 and 1993 which did not touch Eighth Amendment showing that they had acquiesced in the Eighth Amendment which amounts to ratification by implication. [p. 480] L
(d) Constitution of Pakistan (1973) Articles 58(2)(b), 239 & 2A [as inserted by Constitution (Eighth Amendment) Act (XVIII of 1985)]-
We are therefore of considered view that Eighth Amendment including Article 58(2)(b) has come to stay in the Constitution as permanent feature. It is open to the Parliament to make amendment to the Constitution of any provision of the Eighth Amendment as contemplated under Article 239 as long as basic characteristics of federalism, parliamentary democracy and Islamic provisions as envisaged in the Objectives Resolution/Preamble to the Constitution of 1973 which now stands as substantive part of the Constitution in the shape of Article 2A are not touched. [p. 480, 481] M
Per Saleem Akhtar, J.
(e) Constitution of Pakistan (1973) Preamble and Article 2A
As observed earlier, there are some characteristic features in every Constitution which are embedded in the historical, religious and social background of the people for whom it is framed. it cannot be denied that ever Constitution has prominent features, characteristics and picture-frame studded with public aspiration, historical inspiration, geographical recognition, political formulations and people’s expectation. These winding paths whcih roll into the stream, with the passage of time and tide do affect the flow in their own perspective which to the rigid theory would amount to unpardonable change but to a flexible theory it would be a natural result of such confluence and influence. Doubtless, Pakistan owes its creation to ideological belief which is so manifestly reflected in the Objectives Resolution that it has always remained the Preamble of almost all our Constitutions and has been a source of guidance to all. The provisions of the Constitution though not rigidly encircled by it, always remain within its horizon subject to all such changes which manifest different shades of the same colour. A Constitution is the aspiration of the people. It is the experience of the past, the desires of the present nation and last but not the least a hope for the future. A Constitution is a document for all times to come. It cannot be made rigid because such rigidity if confronted with the social and political needs of the time, is likely to create cracks in it. The consistent view of the superior Courts of Pakistan is more real and should be followed and maintained.
Rigidity is one of the main features of a written Constitution. But this rigidity is often tuned to flexibility by the provisions of the Constitution itself and interpreatation made by the Courts. According to Mr. Khalid Anwar rigid Constitution may provike violence. [p. 505, 506] S
The historical experience in Pakistan has shown that so far it is only the judicary, which having power to declare any law as void if it is inconsistent with the provisions of the Constitution, has provided safeguards. The force of public opinion except in a rare case, has independently remained ineffective or unconcerned. Out of three Constitutions two were abrogated by military dictators and the third one worked hardly for five years and remained suspended for about 8 years. The Constitution of 1973 after amendments made by the Eighth Amendment has been working from 30-12-1984 uptodate. During this period of abrogation, suspension and restoration it is the judiciary which has by sheer judicial activism and interpretation brought the deviated machinery to the Constitutional rails. In all the Constitutions, the Objectives Resolution has been the pervading spirit. It spells out broad principles for the governance of the country. The common factors throughout have been federal democratic form of Government guaranteeing all the freedoms equality, tolerance and social justice, as enunciated by Islam and fully securing the independence of judiciary. The other aspect singularly unique is that “Sovereignty over the entire universe belongs to Almighty Allah and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust. The Parliament therefore is not as independent as the British Parliament. However, the Court enjoys power to strike down any law which is in conflict with the provisions of the Constitution. In spite of this power vested in the superior Courts, they do not have power to strike down any provision of the Constitution which may be in conflict with any of its provisions, even in the presence of Article 2A as a substantive part of the Constitution, the Court cannot strike down any provision of the Constitution on its (Article 2A) touchstone. Reference can be made to Hakim Khan v. Government of Pakistan (PLD 1992 SC 595) and Mst. Kaniz Fatima v. Wali Muhammad and another (PLD 1993 SC 901). In view of the legal dispensation resting on the judgments of this Court we agree and approve the observations of Ajmal Mian, C.J. (as he then was) in the impugned judgment that “it is not open to the Court to hold that a provision of the Constitution can be struck down on the ground of its being violative of the Objectives Resolution or of national aspirations or of higher ehtical notions or of philosophical concepts of law or of the basic structure”. [p. 506, 507] T, U & V
(f) Constitution of Pakistan (1973) Article 239 and 238
The provision to amend the Constitution seems to be provided in most of the written Constitutions. It is only question of degrees and to what extent it operates. [p. 508] W
The object being to keep the Constituton alive and in line with the pace of progress, aspiration, will, needs and demands of the people. Constitution cannot be made static and stoic. It must progress, blossom and flower. A rigid Constitution having no provision for amendment is likely to suffer crack by violence or Constitutional deviation. Perhaps it is the historical experience that political philosophers and jurists favour provision for amendment in a written Constitution. Such provisions may restrict the power of amendment specifically as provided in France and Germany. But where an unrestricted power is given to the Legislature then Court will see whether an amendment to the existing Constitution has been duly proposed, adopted and assented in the manner required by the Constitution so as to become a part thereof. However there are factors which restrict the power of the Legislature to amend the Constitution. It is the moral or political sentiment, which binds the barriers of Legislature and forms the Constitutional understandings. The pressure of public opinion is another factor which restricts and resists the unlimited power to amend the Constitution. In Pakistan although Article 239 confers unlimited power to the Legislature, yet it cannot by sheer force of morality and public opinion make laws amending the Constitution in complete violation of the provsiions of Islam. Nor can it convert democratic form in completely undemocratic one. Likewise by amendment Courts cannot be abolished which can perish only with the Constitution. It seems to be an emerging legal theory that even if the Constitution is suspended or abrogated, the judiciary continues to hold its position to impart justice and protect the rights of the people which are violated and impinged by the actions of the powers and authorities which saddle themselves by unconstitutional means. As held in Asma Jillani’s case, such actors are usurpers and the Courts had only condoned their action without approving it. The provisions of the Constitution cannot be suspended except as provided by the Constitution itself. The concept of abrogation of the Constitution is alien to the Constitution. The fact that whenever there occurred Constitutional deviation, it was legalised by condonation or validation granted by the Supreme Court, clearly demonstrates that such deviations and actions were avoid ab initio and unconstitutional. The validation or condonation was granted merely to avoid any disruption of civil and personal rights, to maintain continuity of administration and governance and to bring the polity and system of government on democratic and constitutional rails. But such situation, with reference to Article 6 of the Constitution has to be viewed with greater seriousness. [p. 510, 511] X
Significantly by employing the words “any law”, the intention of the Constitution seems to be that Article 8 will apply to all laws made by the Majlis-e-Shoora (Parliament) be it general or any law to amend the Constitution. Likewise no enactments can be made in respect of teh provisions of the Constitution relating to judiciary by which its independence and separation from executive is undermined or compromised. These are in-built limitations in the Constitution completely independent from political morality and force of public opinion. [p. 511] Z
(g) Constitution of Pakistan (1973) Articles 48, 58, 91 and 92
The Constitution of 1973 had vested supreme power to the Prime Minister and though democratic in form it was Prime Ministerial in character. Amendments made in Articles 48, 58, 91 and 92 have curtailed the power of teh Prime Miister and have strengthened the hand of the President. In a democratic system check and balance is provided to avoid autocratic rule and to provide balance of power for a proper functioning of the Government according to the Constitution. No doubt the amendments particularly Article 58(2)(b) have tilted the balance in favour of the President, yet this Court has structured and circumscribed the discretionary power of dissolution. One reason given in favour of Article 58(2)(b) is that it prevents Constitutional deviation. This seems to be plausible because when Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary, the President may exercise his power before any person, agancy or authority taking advantage of such situation strikes not at the Assembly but at the Constitution. One may comment that to save the Constitutoin, Assembly is dissloved. The exercise of power under Article 58(2)(b) or Constitutional deviation can be avoided not by the letters of the Constitution but by political ethics, morality and maturity. Unless a responsible Government exists whcih has respect for law, opportunity shall continue to be provided for Constitutional strike. [p. 518] II
(h) Constitution of Pakistan (1973) Article 58(2)(b)
Article 58(2)(b) brought in the Constitution by the Eighth Amendment, whcih maintains Parliamentary Form of Government has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed. [p. 521] VV
Per Raja Afrasiab Khan, J.
(i) Constitution of Pakistan (1973) Articles 184, 185, 239, 238 and 2A
It has not been argued before us that the method to amend the Constitution under Article 239 was not adopted by the Parliament in passing the Eighth Amendment. Article 239 provides a mechanism for the amendment of the Constitution. The Amendment Bill may originate in either HOuse and it has to be passed by the votes of not less than two-third of the total membership of the House. It was admitted that the Eighth Amendment Act, 1985 was unanimously passed by the Parliament. Relying upon Articles 238 and 239 of the Constitution and the rule laid down by this Court in Zia-ur-Rehman’s case supra, it can be said that this Court is not competent to strike down the Eighth Amendment which has competently been passed by the Parliament. [p. 536] AAA
The clearly proceeded in good faith as if the impugned amendment was validly and lawfully enacted by the competent Parliament. This can, therefore, be said that dissolution orders of the Assemblies were passed on the assumption that Article 58(2)(b) was validly enacted. This being the position, by implication, this Court has time and again held that the impugned amendment is valid. In this factual background, day to day affairs of the Federation of Pakistan were carried on smoothly without any let or hindrance or objection since the time when the amendment was brought inthe Court. [p. 537] DDD
In case of Hakim Khan v. Government of Pakistan (PLD 1992 SC 595), It has been laid down that Article 2A is not a supra-Constitutional provision inasmuch as it has become an essential and integral part of the Constitution possessing the same weight and status as the other Articles of the Constitution which are already a substantive part thereof. This case arose out of a decision which was rendered by a Full Bench of the Lahore High Court in Mst. Sakina Bibi v. Federation of Pakistan (PLD 1992 Lahore 99). [p. 538] EEE
It has been said in Hakim Khan’s case (supra) that every provision of the Constitution has to be given its meaning and effect. No substantive Constitutional provision can be given any superiority over the other provisions. They have to be read alongwith other provisions as an integral part of the Constitution which is an organic document having come to stay once for all unless it is amended in accordance with Article 239 of the Constitution. [p. 541] FFF
They, therefore, need no further discussion. As already held above, this is not within the authority of this Court to declare the amendment in question as invalid muchless to repeal the Constitution of 1973. [p. 542] HHH
Dates of hearing : 14th to 18th, 21st to 23rd December, 1996, 7th, 8th, 11th and 12th January, 1997.