At the mercy of the House
The nature of the ruling passed down by the Supreme Court regarding the 21st amendment is such that it neither requires lengthy introduction nor a cloak of rhetoric. What may be called the infamous paragraph seventy-three from this judgment must be reproduced in part below to initiate further deliberation over its present and future impact. Paragraph seventy-three states, “[T]here are no limitations, express or implied on the powers of the Parliament to amend the Constitution and the amendments brought about in exercise of such power are not liable to be challenged on any ground whatsoever before any Court.”
While, on its face, the power attributed to parliament does not appear problematic the latter part of the quote may elicit some concern. This statement reads as a deafening microphone drop of sorts, a resounding no to challenges on parliament’s amendment making.
This bar on the Supreme Court’s (or really any court’s) power is a by-product of Article 239, which includes, “No amendment of the Constitution shall be called in question in any court on any ground whatsoever”
This bar on the Supreme Court’s (or really any court’s) power is a by-product of Article 239, which includes, “No amendment of the Constitution shall be called in question in any court on any ground whatsoever.”Article 239 was introduced under the reign of the notorious former President Zia-ul-Haq and eventually received the approval of parliament. This approval should come as no surprise considering that Article 239 in its present form is a blank check of power, so to speak, to parliament. It openly defies any semblance of separation of powers under a guise of keeping such power close to the people. To have expected parliament to vote against its own considerable self-interest would be foolhardy and thus we have Article 239 in the Constitution, as reinforced by this judgment.
Article 184(3) of the Constitution is the basis for detractors of Article 239 to challenge its scope. Those that brought challenges to the 21st amendment did so under the assumed power of this Article because under Article 184(3), the Supreme Court has the jurisdiction to consider questions of “public importance,” as they relate to the enforcement of the fundamental rights also provided by the Constitution. The Supreme Court rejected the claim that Article 184(3) allows an amendment to be challenged. An amendment is not even considered to be law for the purposes of Article 8, which essentially provides that laws inconsistent with the given fundamental rights are void. This in turn means that an amendment, if it were inconsistent with the allotted fundamental rights within the Constitution, could not be declared void, except by action of parliament. As a makeshift solution, the judgment of a previous case may provide some guidance:
It is a well settled law that the validity of a constitutional provision cannot be tested on the basis of another provision in the Constitution both being equal in status. The doctrine of ultra vires necessarily implies that one of the two competing provisions or legislations is inferior in status to the other and the validity of the inferior provision or legislation is tested on the touchstone of the superior one.
These complicated legal and constitutional constructions might as well be written in hieroglyphics for how clearly they come across
On paper, this solutioneering seems plausible, reasonable even. It seems, however, dubious in practice. If the Supreme Court is not able to review any questions regarding amendments, then how is this status determination made? Is this another implied parliamentary power?
These complicated legal and constitutional constructions might as well be written in hieroglyphics for how clearly they come across. It nonetheless seems that for all the effort to preserve power of Constitutional amendment with parliament, the representatives of the people, this Article 239 barrier only serves to remove an individual’s ability to bring a challenge to the Court. To put things bluntly, the law and the people subject to it are at the mercy of their partially elected parliament. The interpretations of the Constitution that support the preservation of Article 239 to the extent that the Supreme Court has no power of judicial review are dangerous in an already fickle democracy.
Absolute Power of Parliament Maintained Absolutely | Maira Sheikh