Revisiting basic structure

Published Jul 17, 2012 03:02am

EVERY few years the question of the basic structure of the constitution of Pakistan and the limitations of parliament’s power become issues of great public interest.

In 2010, it was the judicial appointments process proposed by the 18th Amendment that brought the basic structure doctrine into the limelight, and now possible amendments to the contempt of court and dual nationality provisions of the constitution have once again generated much debate on the matter.

Quite disturbingly, an overwhelming majority of the media seems to hold the view that the judiciary can strike down any constitutional amendment that violates the basic structure of the constitution. In light of the Supreme Court’s recent judgments, however, this view is mistaken.

The Supreme Court’s pronouncements on the issue are confusing and contradictory, but recent judgments suggest that even if there is a basic structure, it is not the job of the courts to defend it.

In Pakistan Lawyers’ Forum vs Federation of Pakistan (2005), for example, Chief Justice Nazim Hussain Siddiqui categorically stated that “there was almost three decades of settled law to the effect that even though there were certain salient features of the constitution, no constitutional amendment could be struck down by the superior judiciary as being violative of those features. The remedy lay in the political and not the judicial process.”

In Nadeem Ahmed vs Federation of Pakistan (2010), the 18th Amendment case, the Supreme Court did not vitiate the judicial appointments mechanism but instead referred the matter back to parliament for reconsideration. The 19th Amendment, which rejected some of the Supreme Court’s recommendations, was also not struck down, even though the court considered the parliamentary committee’s final say in appointing judges of superior courts violative of the principle of the independence of the judiciary.

There should, therefore, be little doubt that if the Supreme Court is to stay true to its own jurisprudence, it cannot strike down constitutional amendments even if they go against the basic structure of the constitution.

The debate should not stop here, however. The more important question is whether it makes sense for Pakistan to follow the Indian model and adopt a judicially enforceable basic-structure doctrine.

The 1973 constitution does not categorically identify its basic features, so first we would have to derive them. But why should the court, an unelected and largely unaccountable body of 17 judges, decide what the basic features of the constitution are?

The written word is open to multiple interpretations. Courts today may see Islam and the independence of the judiciary as basic features of the constitution, but tomorrow a welfare state, fundamental rights and social justice may be viewed as even more integral to our constitutional framework. If parliament is presented with the same question, parliamentary supremacy and the separation of powers may find their way into the basic structure.

Written constitutions allow for changing interpretations to meet the demands of an evolving society; we would be doing a disservice to the constitution as well as Pakistan’s future generations by allowing a bench of Supreme Court judges to make certain features of the constitution immutable.

It should also be noted that the legal and jurisprudential basis of the basic structure doctrine, especially in Pakistan’s context, is shaky at best.

The doctrine assumes that the assembly that promulgated the original constitution — in our case, the remnants of the 1970 parliament — sits on a higher pedestal than the assemblies of our present and our future, a view that, given Pakistan’s history, is hard to swallow.

After the creation of Bangladesh, the legitimacy of the truncated parliament elected in 1970 was itself questionable, let alone its power to decide on a new constitution. While in most countries written constitutions have come about after successful liberation struggles, revolutions or referendums, we got ours at a time of shameful defeat and irreparable loss, written by people who could not legitimately claim to represent the aspirations of the people.

The role of Islam in Pakistani law and politics is also unclear. From seemingly secular speeches made by Jinnah after Pakistan’s creation to the inclusion of the Objectives Resolution in the substantive part of our constitution, from claims that Pakistan was created for Islam to assertions that it was made for Muslims, divergent views on the Islamic nature of the Pakistani state illustrate that the issue is from settled.

On what basis, then, should we tie the hands of our future parliaments to amend the constitution as we attempt to resolve some of these challenges and seek to define our identity?

Proponents of the basic structure doctrine argue that without such protection, parliament may pass all sorts of absurd amendments such as dissolving the institution of the judiciary or legitimising murder. This fear is premised on an extremely dismal view of our elected representatives and an equally heroic view of the judiciary. If we do end up electing a parliament that dares to dissolve the judiciary, for example, surely a judgment of the Supreme Court would not be much of a deterrent. A tyrannical elected parliament would have to be politically defeated and the legal solution provided by the basic structure doctrine would be useless.

Recent remarks from judges of the Supreme Court suggest a shift towards greater acceptance of the basic-structure doctrine.

But judicial enforcement of the basic features of the constitution should be resisted, for if the Supreme Court were to strike down a constitutional amendment, or declare that it has the power to do so, that would move the present tussle between the judiciary and the executive beyond a temporary conflict to set an extremely dangerous precedent for Pakistan’s future.

The writer is a lawyer.

reema.omer@cantab.net

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Comments (13) (Closed)


dr.muhammad orakzai
Jul 17, 2012 07:57pm
parliament truly is superior and it seems to more like that SC had paying no attention to thousand other cases and it is continuously in clash with the government and in every few months Government is faced with a new controversy thus no attention being paid to the administrative issues and it seems more focused on its survival and not torn down in hands of judiciary
Sana
Jul 17, 2012 05:30pm
The government decided not to amend Article 204 of the Constitution (perhaps because they were not confident about a two-third majority) and the contempt of court law is an ordinary Act of parliament. The dual nationality bill, however, is a constitutional bill and seeks to amend Article 63 (1) (c) of the Constitution.
akhter husain
Jul 17, 2012 07:50pm
Those who forget their founding father's wise advice are bound to ruin their future. There is no bar on improving to suit the time requirements.
jibran
Jul 17, 2012 12:49pm
Living nations create their tomorrow and today by their own actions and will. This is the gist of Iqbal's poetry who had a far greater insight into Islamic teachings than a great many politicised islamic scholars. One cannot equate Quran and sunnh with constitution. Constitution is a document for today while Quran and sunnah is to be interpreted by EACH GENERATION in the light of the challenges thrown up by the times in which they happen to be.
Sajid
Jul 17, 2012 04:49am
Overall, I agree with Reema that Parliament is supreme and I personally believe that ultimately judiciary is also accountable to parliament. But at the braoder point of view, the constitution has itself shown its weaknesses and questionable provisions. I would like to see a maturity in our political leaders and intellectuals to come up with a constitution which is not borrowed from other countries (India, or England), and make a truly representative constitution to our society and character. I personally believe some time soon, people will realize that we need our own brand of democracy and not a parliamentary one.
Abdul Waheed
Jul 17, 2012 02:06pm
I agree to some extent that constitution does not provide remedies to certain crises like the present situation. It is a matter of frustration that disputes are arising between judiciary and executive / parliament over certain connstitution issues like immunity to the President, overuling the ruling of Speaker National Assembly to disqualify the duly elected Prime Minister. Though such issues donot arise when governmenta are strong but since these are arising, the constitution should be so elaborate to find ways. In case of any dispute, the matter should have been referred to Parliament, the original forum which is authorised to prepare it, for interpretation and it should also be clearly provided that judiciary cannot nullify any legislation made by parliament otherwise judges like Sajjad Ali Shah and Iftikhar Ch will continue to paralyse the entire system.
SalooBhai
Jul 17, 2012 05:39am
I m least concerned wat the Jinnah's views were, i am more interested in Quran & Holy prophet's sunnah. Wat about new contempt law? How on earth people of Pakistan and Supreme court of Pakistan accept a law that is made to protect few influentials. What about equality
Indian
Jul 17, 2012 08:06am
Great statement!!!! This heralds new beginnings!!!!!
Tayyab
Jul 17, 2012 08:29am
Dual nationality bill or contempt of court bill is not a constitutional amendment first of all. So it can be struck down at any time.
shaukat ali chughtai
Jul 17, 2012 08:27pm
Concur with Jibran. Excellent. How to make this practical reality with the mindset in Pakistan. Suggest solution.
shaukat ali chughtai
Jul 17, 2012 08:30pm
Parliamentry system of government advocated by feudals. So, we have to change parliamentary system to something which empowers local governments and legislature to legislate and enjoy amenities aat the cost of govt expense. Fully concur with you.
shaukat ali chughtai
Jul 17, 2012 08:33pm
One has to revisit and get the fundamentals, where human dignity has been essential. That is the lesson of Holy Quran. Evolutioneery process brings new ideas and new environs. Think about it.
Ali Khan
Jul 17, 2012 10:02pm
Excellent read, very informative.