The Dilemma of Supremacy of constitution: A case study of Pakistan

Abstract

The Constitution of a country is the supreme document that plays an important role as the primary source of laws, All subordinate laws and legislations are always under the process prescribed by a country’s Constitution as well as its limitation, that’s why the Constitution is the supreme as it is above all, even if parliament wants to amend the Constitution that will be too as prescribed by the Constitution. Different countries have adopted different natures of the Constitution, as it can be written or unwritten, codified, or un-codified rigid, semi-rigid or un-rigid, whatever kind it is, it will always remain the supreme document of the land and its law will be considered as supreme law of the land. Our Constitution of 1973, which is written, codified semi-rigid for which a majority is needed in parliament, to amend it. Therefore, it prescribes its procedure and its amendment by the parliamentarian. Constitution 1973 has a basic structure in the shape of the preamble, Objective Resolution, and basic fundamental rights in it, and as per the basic structure’s doctrineno authority can amend and abrogate the constitution’s basic structure, that gap which creates the dilemma is that the basic structure of our Constitution is not clear neither its boundaries and limitations are defined clearly by our Constitution, not any other law and not in the decision by the judges of our supreme courts. The second thing which creates the dilemma is that the same Constitution also gives powers to the parliament that parliament can legislate, and there are no such limitations on parliament. As it is said by the justices of the SC of Pakistan that parliament can even delete the fundamental rights to life, in addition to it, our Constitution says that the ruling of parliament can’t be called into question in any court of law, here the question is what if the amendment made is unconstitutional? Such a situation does create a dilemma in the supremacy of our Constitution and the main reason is the ignorance and lack of legal knowledge of our lawmakers in parliament. The last thing that we know is that Constitution says that no ruling of parliament can be called into question, why such cases are trailed in courts, and how and under what law do they keep it maintainable? As we know that “the Constitution is what the judges interpret it is….” then why judge’s opinions and decisions differ in Achakzai and in the Rawalpindi bar case, where previously in Achakzai case basic structure was somehow recognized or an initiative was taken but recently in the Rawalpindi bar case the basic structure’s doctrineis kicked out. So where exactly does the status of the review of these unconstitutional amendments stand with the Supreme Court? This constitutes a flagrant breach of both the written Articles of the Constitution as well as the Constitutional doctrine that underpins its fundamental framework. To determine the current state of supremacy, this research will examine the debate on the supremacy of the Constitution, unconstitutional amendments, and the remarks of the SC of Pakistan on unconstitutional amendments.