Since the advent of the Pakistan Tehreek-e-Insaf (PTI) government, voices have been raised from time to time to change the parliamentary system to a presidential system. Does the current parliament have the power to change the parliamentary system to a presidential system by amending the constitution? This is not an option and there are some judicial restrictions on it, then what steps can be taken to implement the presidential system? Despite the judicial restrictions, the presidential system can be implemented by amending the constitution.
But how? Under the current constitution of Pakistan The system is in place, apparently the parliament has the power to amend the constitution in any way. However, there are some issues which the Supreme Court has included in the basic constitutional structure and about which the parliament cannot amend the constitution. And where did the idea come from? The basic constitutional framework was formulated in 1949 by the Parliamentary Council of the Federal Republic of Germany.
In Germany, the constitution can be amended by a two-thirds majority, but the Parliamentary Council He said that no incoming legislature or parliament could amend them, including Article 1 and Article 20 of the German Constitution, Article 1 deals with the protection of human dignity and state, while Article 20 deals with federalism and democracy. It is a fact that no legislature or parliament (except the Constituent Assembly) can amend the basic structure of the constitution.
There is a great deal of similarity between the constitutions of Pakistan and India, which is why the decisions of Indian courts on constitutional matters in Pakistani courts are not only presented as a judicial precedent, but Pakistani courts are given a judicial precedent in view of the situation in the case. The basic structure of the constitutions of both Pakistan and India has not been determined by the Parliament.
The question of the basic structure of the Constitution of India was first raised in 1964 by Supreme Court Judge JR Madhu Laker in his dissenting note in the judgment in the Sajjan Singh v. State of Rajasthan case. In 1967, the Supreme Court of India introduced the concept of infrastructure in the Constitution in the Golaknath case, which was related to fundamental constitutional rights. Later, in 1973, the Supreme Court ruled in favor of the Indian Constitution through Landmark Judgment in the Vananda Bharati case.
Determined In this case 23 with He termed the constitution as the basic structure of the constitution which included issues like supremacy of constitution, rule of law, secularism, parliamentary style of government, separatist powers, certain constitutional rights, principle of fair and transparent elections, independence of judiciary, national unity and welfare state.
In this case, the court held that Parliament does not have the power to make constitutional amendments that contradict the constitutional structure. Indira Gandhi passed the 39th Amendment in 1975 on the strength of the overwhelming majority of the Congress (I) in Parliament. Whether a person has been the President, Vice President, Prime Minister or Speaker of the Lok Sabha of India, his nomination papers will not be scrutinized at the time of elections and he will be eligible to contest the elections.
The election of the electorate will not be questioned (in any court). The Supreme Court of India annulled the constitutional amendment in the Indira Nehru Gandhi v. Raj Narayan case as unconstitutional and said that under the 39th Amendment The power of judicial review of the elections of the Vice President, Prime Minister and Speaker has been abolished Contrary to the basic constitutional framework, the amendment also renders point No. 17 on the list of basic constitutional frameworks for transparent elections ineffective.
However, the court ruled that if any party violates the 23-point constitutional framework, if it wants to amend, it will have to include the relevant issue in its election manifesto. If the people give it a mandate in the elections, then it can also amend the relevant issue included in the basic constitutional structure.
Later, the decisions of Lawyers Forum case, Lawyers Front case and Zafar Ali Shah case The notion has been strengthened that there are several decisions of the Pakistani Supreme Court, including the case of military courts, which do not allow Parliament to amend the basic structure of the Constitution. Under Article 238 of the Constitution, Parliament can amend the Constitution by a two-thirds majority.
6) I have also clarified that there is no restriction on the power of Parliament to amend the Constitution, in other words the Parliament of Pakistan is authorized to make any constitutional amendment despite the light of court decisions. The legislature cannot make any such constitutional amendment Prior to 1997, Pakistani courts had been recognizing the full power of Parliament to amend the constitution under Articles 238 and 239 (6). A landmark judgment was passed on petitions against the 21st Amendment to the Constitution. Thirteen of the 17 judges of the Supreme Court, by a majority vote, accepted the idea of the basic structure of the Constitution. Omar Atabandial, while the then Chief Justice Nasirul Mulk, Justice Mian Saqib Nisar, Justice Asif Saeed Khan Khosa and Justice Iqbal Hameed-ur-Rehman did not accept the concept of the basic structure of the Constitution and said that Parliament can amend the Constitution as it pleases. The court is not empowered to review any constitutional amendment. The petitions against the military courts were rejected by 11 of the 17 judges, but all 13 judges, except the four mentioned above, accepted the concept of the basic structure of the constitution, which means that Any constitutional conflict with the infrastructure of It cannot be amended and any constitutional amendment can be judicially examined.
The details of the seal of approval on the concept of basic constitutional structure in this case are as follows: The decision written by Mr. Justice Sheikh Azmat Saeed 7 other judges agreed, they accepted the basic constitutional structure but refused to declare the said amendments as contradictory to it. It consists of democracy, parliamentary system of government and independence of judiciary. Eight judges including Mr. Justice Sheikh Azmat Saeed in their written judgment in paragraph No. 60 regarding Mahmood Khan Achakzai case, Lawyers Front case, Zafar Ali Shah case and Pakistan Lawyers Forum case. According to the decisions of the Supreme Court in these cases, democracy, federal system, parliamentary system of government with Islamic provisions, independence of judiciary, fundamental rights, equality, justice and fair play are the basic features of the constitution. Resolution objectives are also mentioned in No. 65 Under Article 2 (a), it is now part of the Constitution. In this decision, Mr. Justice Jawad S. Khawaja, Mr. Justice Ijaz Afzal Khan, Mr. Justice Ijaz Ahmad Chaudhry, Mr. Justice Dost Mohammad Khan and Mr. Justice Qazi Faiz Issa also laid down the basic structures of the Constitution. In other words, in the light of the decisions of the Supreme Court, the basic structure of the Constitution includes democracy, federal system, parliamentary system of government with Islamic provisions, independence of the judiciary, fundamental rights, equality, justice, fair play constitution and resolution objectives. Included.
After the Supreme Court determines the basic constitutional structure of the Constitution, can it never be amended? If so, how? One way to do this is for the Pakistan Tehreek-e-Insaf (PTI) or any other political party that wants to implement a presidential system to include it in its manifesto. If it wins the election, it will be considered It has been given a mandate to transform the parliamentary system into a presidential system (as decided by the Indian Supreme Court), and will now be empowered to amend the constitution in accordance with its manifesto. If Parliament intends to pass a constitutional amendment, then a referendum can be held. Under Article 48 (6) of the Constitution, if the Prime Minister deems it necessary to hold a referendum on an issue, he will refer the matter to Parliament.
If it is approved in the meeting, then the relevant issue will be presented in the form of a question for public referendum and the people will answer yes or no. Article 48 (7) of the Constitution states that Parliament Procedure for conducting a referendum by law and compiling and using the result of the referendum In addition, the Supreme Court has the power to disregard its previous judgments and to issue a judgment in the light of the circumstances and events of the case under trial which is not consistent with the judgments of the past. The government has the power to send a reference to the Supreme Court for consultation on this matter even after the decisions have been made in favor of the basic constitutional framework of the Constitution. The Supreme Court will look into this question like a case. A full court has been constituted to hear all the references that have been sent in the past. If the Supreme Court does not recognize the basic constitutional structure in response to the President's question, then the opinion (decision) of the full court will take precedence over other decisions and in the light of this the constitutional amendment will be possible.
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