SC Rulings, Constitutional Features Major Hurdle To Presidential System

The presidential form of government can’t be introduced here even through a constitutional amendment as the Supreme Court in its past different rulings has already declared “parliamentary form of government” as one of the basic features of the Constitution and held that these features can’t be altered or deleted even by the parliament.

Few years back, the Supreme Court in its decision in 18th and 21st amendment case as authored by Justice Shaikh Azmat Saeed had declared parliamentary form of government as one the Salient Features of the Constitution, and ruled that they can’t be altered or deleted by the parliament.

While discussing the theory of Salient Features in the light of the past apex court judgments, Justice Azmat said in para 60 and 61 of the main judgment, “60. An overview of the judgments reproduced or cited herein above, more particularly, Mahmood Khan Achakzai’s case (supra), Wukala Mahaz case (supra), Zafar Ali Shah’s case (supra) and Pakistan Lawyers Forum’s case (supra), reveal that this Court has referred to the Prominent Characteristics, which define the Constitution and are its Salient Features. Some of such Characteristics mentioned in the aforesaid judgments, including Democracy, Federalism, Parliamentary Form of Government blended with the Islamic Provisions, Independence of Judiciary, Fundamental Rights, Equality, Justice and Fair Play.

“61. It may not be necessary to conclusively determine the Salient Features of the Constitution, however, Democracy, Parliamentary Form of Government and Independence of Judiciary are certainly included in the Prominent Characteristics, forming the Salient Features, which are primarily relevant for the adjudication of the lis at hand.”

In the concluding 180 para, the judgment ruled that the Constitution contains a schemereflecting its Salient Features which define the Constitution. “Such Salient Features are obvious and self evident upon a harmonious and wholistic interpretation of the Constitution. In an effort to discover such Salient Features material outside the Constitution cannot be safely relied upon.”

The SC then added, “The Salient Features as are ascertainable from the Constitution including Democracy, Parliamentary Form of Government and Independence of the Judiciary,” and ruled, “The amendatory powers of the Parliament are subject to implied limitations. The Parliament, in view of Articles 238 and 239 is vested with the power to amend the Constitution as long as the Salient Features of the Constitution are not repealed, abrogated or substantively altered.”

Although the main judgment signed by eight honourable judges had protected the theory of basic features of the constitution from being mutilated by the parliament, the then Chief Justice Nasir-ul-Mulk in his note negated the primacy of the Objective Resolution as well as the theory of Basic Structure and gave the parliament all the powers to do choice constitutional amendment.

In Syed Zafar Ali Shah’s case (PLD 2000 SC 869), it has been unequivocally laid down that “no amendment shall be made in the salient features of the Constitution, i.e. independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions”.

Although there are legal minds who challenge these basic features of the constitution, others say that these fundamentals of the constitution can’t be altered or deleted through a constitutional amendment by the parliament. It is argued that the basic features of the constitution can only be changed by a “constituent assembly”.

A constituent assembly or constitutional assembly is a body or assembly of popularly elected representatives composed for the purpose of drafting or adopting a constitution. A constituent assembly is usually set up for its specific purpose, which it carries out in a relatively short time, after which the assembly is dissolved or turned into legislative assembly.

(Published in Monthly Tribute International on 01-05-2019)