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District Bar Association, Rawalpindi v. Federation of Pakistan: Marbury-Style Judicial Empowerment?

Neil Modi, Visiting Researcher, Georgetown University Law Center

The Pakistani Supreme Court’s decision in District Bar Association, Rawalpindi v. Federation of Pakistan (2015) serves as a good illustration of an attempt of judicial self-empowerment, akin to a Marbury v. Madison-style moment.[1] By this I mean that the strategy adopted by the court in this case bears unique similarities to the one adopted by Chief Justice Marshall in Marbury v. Madison (1803)[2] where he exhibited “a willingness to yield to the will of other branches of government, while at the same time creating a space for the Court to provide constitutional interpretation on the actions taken by other branches of government.”[3]

The case concerned a challenge to three constitutional amendments- the 18th, 19th and 21st Amendments- each touching, inter alia, on the principle of judicial independence. The 18th Amendment enacted a host of wide-ranging changes, including laying down a new procedure for judicial appointments, increasing provincial autonomy through abolition of the Concurrent Legislative List, enacting changes to the representation of religious minorities in the Parliament, and altering the powers of heads of political parties over legislators concerning voting on certain specified matters.  The 19th amendment provided for the modalities of appointment of judges to the superior courts, including underlining the role of the newly constituted Judicial Council of Pakistan, which envisaged a greater role for the executive branch in appointments. In turn, the 21st Amendment involved the formation of military courts to try individuals believed or known to be part of terrorist organizations using the name of a religion or sect. It generated controversy because of the classification permitting differentiation and unequal treatment under the constitution, and concerns of a lack of due process in military courts. Promulgated with a two-year sunset clause, the amendment expired in 2017. [4]

The primary questions before the court were the following: a) If there were any limitations (implied and substantive) on the powers of the Parliament to amend the Constitution? [5] If the first question was answered in the affirmative, and thus there were indeed limitations on the amending powers of Parliament, did the court possess the power to strike down unconstitutional amendments?

The matter was heard by a bench of seventeen judges, and in a landmark decision, an overwhelming majority of the court (thirteen of seventeen judges) answered both questions in the affirmative. This constitutes the first substantive holding of the court. The majority however differed in their reasoning of the location and contours of the implied substantive limits to the amendment power. In a plurality opinion, eight of thirteen judges found this limitation through an expression of the ‘Salient Features’ of the Constitution. (However, it is important to note that unlike their Indian counterparts, the ‘Salient Features’ doctrine had never been recognized as a rule of constitutional law, and until now has never been used to invalidate an amendment.) The remaining five judges dismissed the existence of the ‘Salient Features’ doctrine, and while recognizing that there were indeed implied limits on the power, found that it was the Constitution when read as a whole that supplied the substantive limits on the amendment power. Finally, four judges rejected the notion that there were implied limits on the powers of Parliament to amend the Constitution.[6]

Equally significant is the second part of the holding. The plurality opinion, despite their finding entrenching judicial review over constitutional amendments, upheld the legality of the amendments in question. The eight judges in plurality, combined with the four dissenting judges who also upheld the amendments, indicates that a total of twelve of seventeen judges on the bench arrived at this holding. The case serves as an outstanding illustration of a judicial attempt at self-empowerment: the majority decision to recognize the power of judicial review, while also upholding the amendments, bears hallmarks of Marbury v. Madison.[7]

The judgement represented the first occasion on which the Supreme Court of Pakistan clearly authorized substantive review of constitutional amendments on the basis that there are implied substantive limits on Parliament’s power to amend the Constitution (though there was disagreement on the sources of the power of judicial review: i.e. the ‘Salient Features’ doctrine vis-à-vis the Constitution). However, endorsing a doctrine and actually using it to invalidate constitutional amendment are not the same.[8] This is amply borne out by the decision to uphold the amendments.

The holding is crucial in that it is an indicator of the willingness of the court to exercise this previously unused power of judicial review to hold amendments unconstitutional, a power which if duly expanded and exercised in this manner, will bring the jurisprudence of the Supreme Court of Pakistan more in line with its South Asian counterparts.

While it is indeed challenging to identify how, and in what types of cases, the Pakistan Supreme Court might choose to exercise this newly established power in the future, an attempt can be made at an educated guess. This is an issue that can be framed under the overarching context of the relationship between the parliamentary form of government, and Pakistan’s religious character as an ‘Islamic’ state. This also marks the fundamental distinction between the Pakistani and Indian basic structures. While they both share similarities in referring to judicial independence, fundamental rights and federalism, in Pakistan, the Constitution’s ‘salient’ features do not stress a parliamentary form of government accompanied by secularism, instead including a parliamentary form of government ‘blended with Islamic provisions’.

The debate around former Pakistani Prime Minister Nawaz Sharif’s disqualification in the Panama Papers corruption scandal, and the legal basis for that removal under Art. 62 (1)(f) [9] of the Pakistani Constitution, presents an interesting illustration.[10] The provision requires every Pakistani parliamentarian to be ‘righteous’, ‘honest’ and ameen (i.e. honest in a specifically religious sense). Having failed to disclose all his sources of income, the former PM was considered ‘dishonest’ and duly disqualified under this provision, which raised several questions of the future direction that basis structure jurisprudence may take. Hypothetically, if at some point in the future, a governing party sought to avoid the fate of PM Sharif, they may attempt to introduce a constitutional amendment to revise Art. 62(1)(f), or at any rate seek to circumscribe the scope of the provision, which as currently worded is open to wide-ranging interpretation. Indeed, should such an amendment be passed, it can be speculated that the court, under pressure from activists seeking to defend the Constitution’s fundamental attachment to ‘Islam’, may choose to strike down this amendment on the ground of a ‘basic structure’ violation, in this case, a ‘parliamentary form of government blended with Islamic provisions’. Therefore, should we witness the court invoking judicial review in the future, it is likely that these powers may be exercised in matters that fundamentally implicate the relationship between the doctrine and religion-State relations. This would duly cement the characterization of the case as Pakistan’s Marbury-moment.

Suggested citation: Neil Modi, District Bar Association, Rawalpindi v. Federation of Pakistan: Marbury-Style Judicial Empowerment? Dec. 1, 2019, at: http://www.iconnectblog.com/2019/12/district-bar-association-rawalpindi-v-federation-of-pakistan-marbury-style-judicial-empowerment/


[1] This concept is based on a forthcoming article by Professor Yvonne Tew, Georgetown University Law Center. Yvonne Tew, Strategic Judicial Empowerment in Comparative Contexts (forthcoming).

[2] Marbury v. Madison, 5 U.S. 137 (1803).

[3] Stefanus Hendrianto’s “Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes.” See Yvonne Tew, Book Review: Yvonne Tew on Stefanus Hendrianto’s “Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes”, Int’l J. Const. L. Blog, January 17, 2019, at: http://www.iconnectblog.com/2019/01/book-review-yvonne-tew-on-stefanus-hendriantos-law-and-politics-of-constitutional-courts-indonesia-and-the-search-for-judicial-heroes/ (arguing that “unlike ‘weak-form’ review, which is purportedly focused on promoting a democratic “dialogue” between courts and legislatures, the Marbury-style approach is strategically directed at empowering the courts vis-à-vis the political branches”)

[4] Aratrika Choudhari, The Curious Case of Salient Features: Exploring the Current Relevance of the Basic Structure Doctrine in Pakistan, 15 February, 2016; Waqqas Mir, Saying Not What the Constitution is … But What It Should be: Comment on the Judgment on the 18th and 21st Amendments to the Constitution’ 2 LUMS Law Journal 64, 67 (2015).

[5]Constitution of Pakistan, Art. 239(5)-(6): “(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever. (6) 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.”

[6] District Bar Association, Rawalpindi and others v Federation of Pakistan in Constitutional Petition No. 12 of 2010.

[7] Majid Rizvi, South Asian Constitutional Convergence Revisited: Pakistan and the Basic Structure Doctrine, Int’l J. Const. L. Blog, 18 September, 2015.

[8] Matthew Nelson, Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion, 13 Asian J. Comp. L. 333 (2018).

[9] Constitution of Pakistan, Art. 62(1)(f): “A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.”

[10] Id. at 352. Indeed, the illustration (of the proposed amendment) has been alluded to by not just the author Matthew Nelson, but other scholars of Pakistani constitutional law including Waqqas Mir, the press, and also in the scholarship of a lawyer that was later elevated to the Pakistani Supreme Court.

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Published on December 1, 2019
Author:          Filed under: Analysis
 

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