8. Khan Asfandyar Wali vs. Federation of Pakistan

Introduction

The Khan Asfandyar Wali and Others vs. Federation of Pakistan case (PLD 2001 SC 607) is a landmark judgment of the Supreme Court of Pakistan that dealt with the 18th Amendment to the Constitution of Pakistan, introduced by the military regime of General Pervez Musharraf. The amendment was part of the larger context of Pakistan’s military rule and the military’s influence over constitutional processes. The case examined the legality of these amendments, specifically their impact on the fundamental principles of Pakistan’s Constitution of 1973.

The case is particularly significant for law students as it touches upon key concepts of constitutional law, judicial review, and the doctrine of basic structure. This article explores the case’s facts, legal issues, arguments, judgment, and its impact on Pakistan’s constitutional jurisprudence.

 

Background of Khan Asfandyar vs. Federation of Pakistan

The 18th Amendment to the Constitution of Pakistan was a set of amendments made by General Musharraf’s military government. The military government, which came to power through a coup d’état in 1999, sought to reform Pakistan’s Constitution to suit its vision of governance. The 18th Amendment granted the President sweeping powers, which included the ability to dissolve the National Assembly and remove the Prime Minister.

This amendment was challenged by Khan Asfandyar Wali, a prominent political leader of the Awami National Party (ANP), and others, who argued that the amendments violated the basic structure of Pakistan’s Constitution, which is founded on democratic principles, the rule of law, and the separation of powers among the executive, legislature, and judiciary. The petitioners contended that these constitutional changes concentrated too much power in the hands of the President and undermined the democratic principles of Pakistan’s Constitution.

 

Legal Issues in Khan Asfandyar vs. Federation of Pakistan

The core legal issues raised in this case were:

Constitutionality of the 18th Amendment: Was the 18th Amendment consistent with the fundamental principles of the Constitution, particularly the separation of powers and democratic governance?

Doctrine of Basic Structure: Can constitutional amendments alter the basic structure of the Constitution, which includes core democratic features and the balance of power?

Role of the Judiciary: Does the judiciary have the power to review and challenge constitutional amendments, particularly those made by an unelected military government?

 

Arguments by the Petitioners

The petitioners raised several key arguments challenging the validity of the 18th Amendment:

Violation of Basic Structure:

They argued that the 18th Amendment violated the basic structure of the Constitution, which guarantees a separation of powers and democratic governance. The petitioners contended that the amendments tilted the balance of power towards the President and undermined the role of the Prime Minister and Parliament.

Unconstitutional Military Rule:

The petitioners argued that the amendments were introduced by an unconstitutional military regime and, therefore, could not be validated. They maintained that the military government’s actions were illegitimate and that such actions could not be allowed to permanently alter the democratic framework of the country.

Threat to Judicial Independence:

They also contended that the 18th Amendment threatened the independence of the judiciary by giving the President undue powers to influence the judicial process, including the appointment of judges.

 

Arguments by the Respondents

The respondents, representing the Federation of Pakistan, defended the 18th Amendment on several grounds:

Constitutional Legitimacy:

The government argued that the 18th Amendment was passed by the National Assembly, an elected body, and was, therefore, constitutionally valid. They argued that the amendment process, as prescribed in the Constitution, had been followed, and the amendments were not inherently unconstitutional.

No Violation of Basic Structure:

The respondents claimed that the changes made by the 18th Amendment did not violate the basic structure of the Constitution. They maintained that the President’s powers were in line with the 1973 Constitution and did not disrupt the balance of power or the democratic system.

Judicial Role in Constitutional Review:

The respondents argued that the judiciary did not have the authority to review constitutional amendments if they were passed by a legitimate legislative body. They contended that such amendments were beyond the scope of judicial review.

 

Supreme Court’s Judgment

The Supreme Court of Pakistan, in its judgment, upheld the 18th Amendment, but with important qualifications and caveats:

Affirmation of the Doctrine of Basic Structure:

The Court acknowledged the importance of the basic structure doctrine, asserting that the Constitution contains certain fundamental principles that cannot be altered, even through amendments. These include democracy, the rule of law, and the separation of powers.

Constitutional Review:

The Court held that the judiciary retains the power of judicial review to ensure that no amendments violate the basic structure of the Constitution. While the 18th Amendment was upheld, the Court emphasized that amendments must not alter the Constitution’s core democratic values.

Legitimacy of the Military Government’s Actions:

The Court took the position that the 18th Amendment had been passed by a legitimate legislative process and, despite the military government’s rule, it could not strike down the entire amendment. The Court recognized that, although the military government was unconstitutional, the procedural legitimacy of the legislative process was sufficient to uphold the amendments.

Protecting Judicial Independence:

The Court also reiterated its commitment to protecting the independence of the judiciary and maintaining the balance of power among the branches of government. However, it did not find the President’s enhanced powers to be unconstitutional.

 

Impact of the Judgment

The Khan Asfandyar Wali case had significant implications for Pakistan’s constitutional jurisprudence:

Reaffirmation of the Basic Structure Doctrine:

The Court’s decision confirmed the application of the basic structure doctrine in Pakistan. This means that certain elements of the Constitution, such as democratic governance and the rule of law, cannot be altered through amendments.

Judicial Review:

The judgment emphasized the role of the judiciary in upholding the Constitution and ensuring that any amendments do not violate its core principles. It reasserted that the judiciary can review constitutional amendments to ensure they do not disrupt the Constitution’s basic framework.

Role of the Military in Constitutional Changes:

While the Court upheld the 18th Amendment, it also highlighted the challenges posed by a military regime attempting to amend the Constitution. This set a precedent for future legal challenges related to military interventions and their legitimacy.

 

Criticism of the Judgment

Despite the Court’s decision to uphold the 18th Amendment, the judgment faced criticism:

Legitimization of Military Rule:

Critics argued that by upholding the 18th Amendment, the Court indirectly legitimized the military regime, which had come to power through an unconstitutional coup. They contended that the Court failed to fully protect Pakistan’s democratic principles.

Insufficient Protection of Democracy:

Some legal experts felt that the judgment did not go far enough in protecting democratic values, especially the power of the Parliament and the Prime Minister. By allowing significant presidential powers, the Court was criticized for enabling undue executive dominance.

 

Conclusion

The Khan Asfandyar Wali vs. Federation of Pakistan case is a landmark decision in Pakistan’s constitutional history. It provides important insights into the application of the basic structure doctrine, the role of the judiciary in reviewing constitutional amendments, and the tensions between military rule and constitutional democracy.

For LAW GAT aspirants, understanding the Court’s reasoning and the legal principles involved in this case is essential for grasping the complex relationship between the executive, legislature, and judiciary in Pakistan’s constitutional framework. This case remains a pivotal reference for understanding the limits of constitutional amendments and the protection of democratic values in Pakistan.

 

 

Important Multiple Choice Questions (MCQs)