In the case of Zia-ur-Rehman, (PLD 1973 SC 49) the judgment of a Full Bench of Lahore High Court was under challenge where different Constitution Petitions filed by some political activists including Mukhtar Rana, a famous politician from Faisalabad, who was convicted and sentenced by Military Court during the Civilian Rule of Pakistan Peoples Party were involved. At the relevant time Mukhtar Rana was the member of National Assembly. One of the plea raised by him before the Lahore High Court was that since the National Assembly in absence of the majority of the members from East Pakistan was not validly constituted and could not legally function, therefore the High Court was legally entitle to strike down such of the provisions of the Interim Constitution, which were violative of the fundamental principles enshrined in the Objective resolution of the 07th March, 1949. Reference was also made to the case of Fazalul Quadir Chowdhury (PLD 1966 SC 105). It was held by Chief Justice Mr. Hamood-ur-Rehman, that the Supreme Court has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution since it is a creature of the constitution and it derives its powers and jurisdiction from the Constitution. It was further held that while exercising this power, the judiciary claims no supremacy over other organs of the government but acts only as the administrator of the public will. At page 71 of the report it was observed that
“….I for my part cannot conceive of a situation, in which, after a formal written Constitution has lawfully been adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any part of its provisions ultra vires or void. This will be no part of its function of interpretation….”
Indeed, it is not the function of Judiciary to legislate or to question the wisdom of the Legislature but the Supreme Court did not specify the role of judiciary when “….Legislative fails to keep within its own constitutional limits, the judiciary steps in to enforce compliance with the Constitution….” Supreme Court should have further elaborated their following observation since it was in conflict with subsequent rule as noted above: –
“…..Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as a paramount law whenever a legislative enactment comes into conflict with it because, it is its duty to see that the Constitution prevails. It is only when the Legislative fails to keep within its own Constitution limits, the judiciary steps in to enforce compliance with the Constitution. This is no doubt a delicate task as pointed out in the case of Fazalul Quader Chowdhury v. Shah Nawaz, which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitations imposed upon them or claim to exercise power which the people have been careful to withhold from them…..”
The constitutional limit of the Legislature has been prescribed vide Articles 6, 8, 232(2)(a)&(3) and Article 239(4) of the Constitution. Now, again the question, whether there is any other limitation on the legislature to amend the Constitution as it like, or there is some provisions, which could not be amended or altered.
In the case of Saeed Ahmed Khan (PLD 1974 SC 151) one of the question involved was the power of the President under Article 279 of the Interim Constitution, 1972, through which Article 281 was amended by the President’s Order no.III of 1973. Chief Justice Mr. Hamood-ur-Rehman while speaking for the Full Bench held that the said amendment was competently made. The dictum laid down in Moulvi Tamizuddin Khan ( ) case that the powers of the Governor General were co-equal to those of British Parliament was referred. However, the plea raised by Mr. Manzoor Qadir Sr.A.S.C that “in any event no amendment under Article 279 of the Interim Constitution would be intra vires if it had the affect of repealing the Constitution or destroying it” was answered by the Bench observing that” it does not fall to be considered in this case, because, the amendment under challenge has by no means done that”. It is important to note that Chief Justice Hamoodur Rehman did not specifically made any observation while replying the plea that the parliament would be competent to destroy the spirit of a Constitution by exercising powers of amendment. The amendment made by the President in Article 289 of the Constitution was up held on the ground that it has added some words to the existing article 281 of the Interim Constitution, 1972. It cannot be said that in the case of Saeed Ahmed Khan ( ) the Supreme Court of Pakistan extended absolute authority to the parliament to amend the Constitution as it may like. This judgment cannot be treated as precedent for the proposal that the parliament has absolute authority to amend the Constitution.