Objection, your honour

Deciphering the Supreme Court's judgment on the 18th and 21st amendments

Objection, your honour
The Supreme Court’s much anticipated judgment on the 18th and 21st Constitutional amendments was delivered last week. Members of the Government and Opposition and many in the legal community celebrated the Supreme Court’s findings as a victory for parliamentary sovereignty, the Court’s recognition of Parliament as the true embodiment of the will of the people.

Regrettably, the judgment is anything but that. Not only does it significantly weaken parliament, it also demonstrates an abdication by the Supreme Court of its role to protect and promote human rights.

Parliamentary sovereignty and the “basic structure doctrine”

The challenge to the 21st Amendment to the Constitution was heard together with the challenge to the 18th Amendment, pending since 2010. That the Supreme Court can review legislation on the touchstone of the Constitution is settled practice; however, the preliminary issue confronting the 17-member full bench in this case was whether: (1) the Supreme Court has the jurisdiction to review, and if required, strike down amendments to the Constitution; and (2) if yes, on what grounds? The Supreme Court raised these questions in multiple judgments in the past, but did not reach a definitive conclusion.

The Constitution itself appears quite clear on the issue: Article 239(5) and (6) expressly state that “no amendment of the Constitution shall be called in question in any court on any ground whatsoever”, and even more categorically, “for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.”

A majority of 13 judges of the Supreme Court answered the question in the affirmative. They argued that the Parliament in Pakistan, unlike the British Parliament, is not “completely sovereign”, and its powers to amend the Constitution are limited. The honorable judges concluded that it is the Supreme Court –the “guardian of the Constitution”- that would determine what those limitations are, and if they are transgressed, have the power to strike them down.

The judges, however, suggested a number of different interpretations on the precise content and source of those limitations.

Majority opinion

According to the majority opinion, authored by Justice Azmat Saeed and endorsed by seven other judges, there are implied restrictions on the Parliament’s power to amend the Constitution “so as not to substantively alter, repeal or abrogate the Salient Features of the Constitution.” The majority opinion held that it was not necessary to conclusively determine the salient features of the Constitution at this point, however, “democracy, parliamentary form of government and independence of the judiciary are certainly included in the prominent characteristics, forming the Salient Features”.

The judges reasoned that all questions about what kind of a country Pakistan was going to be were resolved through consensus in the 1973 Constitution. Any attempt by Parliament to reopen those debates and reimagine Pakistan would risk “unleashing political tempests of unparalleled fury which may be difficult to control”, and the Supreme Court was duty-bound to guard against that.

Justice Jawwad S Khawaja and Justice Faez Isa

Justice Jawwad S Khawaja and Justice Qazi Faez Isa authored separate opinions, but both were by and large in agreement over their reasoning and conclusions.

Justice Khawaja argued that years of colonization had instilled the notion of “parliamentary sovereignty” into our collective thinking, and had “dulled the significance of our own post independence aspirations.” Both judges argued that the post-independence governance model was closer to the “will of the people of Pakistan” as expressed in the Preamble of the Constitution.

They rejected the “basic structure doctrine” (coined by the Supreme Court of India to review constitutional amendments), which they considered an “alien” theory borne in a foreign land. They reasoned that given Pakistan’s unique context, the limitations on Parliament’s powers to amend the Constitution were not found in the structure of the Constitution, but in the preamble, which was an embodiment of the Nation’s social contract and “aspirations for a future order”. No Parliament, therefore, had the power to alter the nine principles enshrined the preamble, including “democracy, freedom, equality, tolerance and social justice, as enunciated by Islam” and independence of the judiciary.


Four judges including Chief Justice Nasir-ul-Mulk, Justice Rehman, Justice Khosa, and Justice Nisar rejected any limitations on Parliament’s powers to amend the Constitution. Their position was succinctly argued by Justice Nisar, who reasoned that matters of governance must be decided by the chosen representatives of the people, and should not be left at the “mercy of the collective wisdom of unelected Judges”, who “are the least accountable branch and in Pakistan in particular are, in a quite literal sense, a closed brotherhood”. He recognized Parliament’s mistakes in the past, but also reminded of the judiciary’s own follies. Justice Khosa raised another importance concern and asked that even if the preamble and the salient features of the Constitution expressed the will of a past generation, why should the Supreme Court hold future generations hostage to it?

Military courts, independence of the judiciary and fair trial

After confirming its power to strike down constitutional amendments that violate the salient features of the Constitution, the second question before the Court was whether the trial by military courts of individuals accused of terrorism-related offences who are known to, or claim to be, members of terrorist groups was compatible with the Constitution, particularly fundamental rights and the independence of the judiciary.

A majority of nine judges of the Supreme Court held they were compatible, six judges held that they were not compatible, and two judges did not give an opinion on the merits of the case.

Justice Azmat Saeed authored the majority opinion, endorsed by seven other judges, and reasoned that (1) trials before military courts meet principles of criminal justice; (2) the constitutional scheme allows deviation from standard procedure in exceptional cases (one may call it the “doctrine of necessity”); and (3) the amendments only authorized military trials for “terrorists”, which was a valid classification allowing for differential treatment.

Despite holding that they have the jurisdiction to invalidate the 21st amendment, a majority of eight judges decided that the salient features of the Constitution were not significantly altered by the trial of civilian terrorism suspects in military courts. Justice Saqib Nisar too endorsed the majority’s opinion on this particular issue in his individual opinion.


A minority of six judges differed in their conclusions. For them, the trial of civilians by military courts was an affront to principles of justice, fair trial and independence of the judiciary as military officers were a part of the executive and did not meet the requirements of independent and impartial courts. Justice Faez Isa also pointed out the many flaws in the existing anti-terrorism courts and practices, including the Government’s failure to ban known terrorist organizations and weak prosecution and delays in terrorism cases, which if corrected would allow the Government to lawfully combat the impunity for offences related to terrorism. Military courts were not, therefore, a necessary measure for the struggle against terrorism. As Justice Khosa put it: “A suicidal measure on the part of the society to counter suicide bombers may not be the most rational legislative step to take.”

Judicial appointments

The Supreme Court did not just respond to petitions challenging the 21st amendment, it also ruled on various pending challenges to the 18th amendment, out of which one of the major questions before the Court was the procedure of appointments of the superior judiciary. Through the 18th amendment, Parliament had amended the procedure for appointment for SC and High Court judges. Through a short order, the Supreme Court in 2010 had sent the amendment back to Parliament to review the procedure for appointments, giving recommendations to make it more compatible with independence of the judiciary. The Parliament promptly complied and passed the 19th amendment.

According to the new system of appointments, a judicial commission, comprised largely of judges, nominates candidates for vacant positions to a Parliamentary Committee, comprised of parliamentarians from both Houses with equal representation from the government and opposition. The Parliamentary Committee can either accept the Judicial Commission’s recommendations, or reject them by three-fourth majority. The Parliamentary Committee’s powers were further read down by another Supreme Court judgment, where it held that the Supreme Court would have the final say on whether the Parliamentary Committee’s rejection of a nominee was reasonable.

Since the detailed judgment from the 2010 case was never issued, the Supreme Court also used this opportunity to finally give its reasoning. A majority of judges were in agreement that independence of the judiciary means complete control over the judiciary’s affairs, including appointments. The judiciary (namely the Chief Justice of Pakistan) must initiate the nomination process and make the final decision on appointments – any substantial role by parliamentarians in the process would amount to outside influence and a breach of judicial independence. The judges therefore reaffirmed that the Parliamentary Committee decisions are not binding on the Judicial Commission and are also subject to review by the Supreme Court.

It comes as a surprise that while the Supreme Court did not find a parallel judicial system of military courts repugnant to the independence of the judiciary, it jealously guarded against any parliamentary influence in the judicial appointments process.

This is all the more difficult to understand given that even under international standards on judicial independence, it is not a necessary requirement that judges have complete control over their appointments. UN standards on judicial independence, for example, do not prohibit a role of the parliament in the appointments process as long as there are sufficient safeguards against appointments for improper motives.

Applicability of international human rights commitments

Another regrettable aspect of the judgment is the Supreme Court’s dismissal of Pakistan’s international human rights law obligations. In recent years, the Court in some landmark judgments has relied heavily on international human rights standards. In judgments related to the rights of religious minorities and enforced disappearances, for example, judges have even considered treaties not ratified by Pakistan as authoritative sources.

In this particular judgment, however, the majority opinion abdicated all responsibility to implement international human rights standards – which prohibit trial of civilians in military courts that do not meet minimum fair trial guarantees –and held: “During the course of arguments, some reference was made to the Public International Law and International commitments made by the Pakistan. It is for the Federal Government to ensure that the course of action undertaken by them does not offend against the Public International Law or any International Commitment made by the State, which may have adverse repercussions for Pakistan.”

This is a disturbing development, and certainly not an observation befitting of a judiciary that claims to protect and promote human rights.

Expectations from the Supreme Court’s judgment on the 21st and 18th constitutional amendments were varied. The optimists expected that the Supreme Court would declare military courts incompatible with human rights and independence of the judiciary, even if it stopped short of invalidating the 21stamendment due to lack of review jurisdiction over constitutional amendments. The more cautious observers hoped that the Supreme Court would at least bring procedures before military courts closer to the requirements of right to fair trial, and enhance safeguards available to suspects, including, for example, the right to appeal before a civilian court. The August 5 judgement will be seen in history as one in which the Supreme Court further enhanced the judiciary’s own powers, but failed to use that power to protect the human rights of the people of Pakistan.

The writer is a lawyer

Email: reema.omer@gmail.com

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