The politics of (un)constitutional amendment
The idea that a constitutional amendment can be unconstitutional first figured in the political discourse not too long after the nation's founding Constitution was adopted on 4 November 1972.
The 2nd Amendment of 1973 was enacted to legalise executive detention without trial on state security grounds and to protect any constitutional amendment from the allegation of unconstitutionality for being incompatible with fundamental rights.[761] Because of democratic decline and increasing party dominance at the time, criticisms and debates over the 2nd Amendment's unconstitutionality were quite limited.The genesis of the idea of UCA, however, can be traced to pre-1971 (un) constitutional politics. In the 8th Amendment Case of 1989, the lead counsel emphasised that the idea of unamendability of basic constitutional features was not an alien concept but rather was an old one, first mooted in the 1963 Dacca High Court case of Muhammad Abdul Haque v Fazlul Quader Chowdhury.1 In Abdul Haque, Mr Haque, who was a member of the National Assembly of Pakistan, challenged Mr Chowdhury and other respondents’ eligibility to continue as members on the grounds that they lost their membership to the Assembly upon their appointment as ministers per article 104 of Pakistan’s undemocratic Constitution of 1962.[762] [763] Acting under article 224(3), the President in the meantime promulgated an “Order” making it lawful for a minister to continue as a member of parliament. More importantly, article 6 of the President’s Order deprived the Court of the power to review the validity of the Order. There is little doubt, therefore, that the Order was sort of an executive constitutional amendment in disguise.
The Attorney-General sternly opposed the Court’s jurisdiction to test the legality of Presidential Orders “removing” any difficulty in the operation of the Constitution.
Justice Murshed, with whom Justices Siddiky and Chowdhury agreed, dismissed the government’s case, and found the Order to be unconstitutional. Murshed, J observed as follows:Art. 104(1) and the allied articles relating to the same subject constitute one of the main pillars of the Constitution which envisages a sort of [presidential form of [g]overnment where the Ministers are not responsible to the Legislative Assembly, but to the President himself.. This concept of a separation of the executive body from the [legislature. is the very basis of [sic] present Constitution. Mr. Brohi has aptly described it as the corner-stone which supports the arch of the Constitution. (Emphasis added)[764]
As Murshed, J further held, the impugned Order was a de facto constitutional amendment and it “wiped out” a “vital provision” of the Constitution without resorting to the special machinery of constitutional amendment. On appeal, Pakistan’s Supreme Court unanimously rejected the appeal. Chief Justice Cornelius observed that judicial review is a fundamental provision that could not be taken away from the Constitution and that “franchise” and the “form of Government” were fundamental features that were not subject to alteration by a Presidential Order under that Constitution.[765] Both courts annulled article 6 of the Order and, thus, unanimously placed higher normative value on the principle of judicial review.[766]
This case clearly shows how the executive resorted to unconstitutional politics to amend the constitution with an ulterior motive. At the time, the executive branch was authoritarian, and the regime was extra-constitutional itself. As Abdul Haque further depicts, political figures nevertheless relied on constitutional arguments to challenge what they considered an unconstitutional constitutional amendment. On the other hand, the Court intervened into politics for a right cause during a politically challenging time of a dictatorial regime.
The 1962 Constitution of Pakistan was written and promulgated by the military ruler Ayub Khan on 1 March 1962, who assumed power in October 1958 after suspending the first Constitution of 1956. Ayub Khan had an utter distrust of political parties and parliamentary democracy. From the early 1960s, political dissatisfaction and public mobilisation against Ayub's regime began to grow. In the meantime, disturbances broke out in East Pakistan where leaders threatened to fight against the undemocratic Constitution, and members of parliament demanded the withdrawal of the ban on party politics, and “Pakistani students and residents in London” organised a public meeting on 18 February 1962 “protesting against the continuation of military dictatorship.”[767]
The temporal aspect of the judicial role in Abdul Haque vis-a-vis unconstitutional constitutional amendment probably signifies that the Court garnered legitimacy for its decision from the people's aspiration for constitutional democracy at the time. The political climate and the facts and politics surrounding Abdul Haque bear a striking similarity with Bangladesh's first basic-structure case,[768] analysed below.
11.3