ISLAMABAD: The Supreme Court said on Tuesday it had always relied on the basic structure theory only to protect the core values of the constitutional fabric and democracy in the larger interest of the country whenever a military dictator tinkered with the constitution.
“The courts in Pakistan have always tried to find a way in defending the constitution on the basis of basic structure theory when the parliament is virtually under the thumb of the dictators and the doors of the constitutional remedies are shut,” observed Justice Asif Saeed Khosa, one of the members of a 17-judge full court of the Supreme Court hearing a set of challenges to the 18th and the 21st amendments attacking the appointment procedure of superior court judges as well as establishment of military courts to try terrorists.
The observations came when counsel Hamid Khan representing a number of district bar associations which had challenged the 18th amendment cited a number of judgments from the Indian jurisdiction like the 1967 Golaknath case, 1973 Kesavananda Bharti case and the 1980 Minerva Mills case in which the Indian Supreme Court had held that parliament could not curtail any of the fundamental rights from the constitution and the basic structure theory was outlined and applied.
But Justice Khosa again reminded the counsel that though the Indian cases established that the brute transient majority could not be allowed to play roughshod with the minorities, the problem with the Pakistani case was that amendments under challenged were adopted unanimously by parliament. The things are different here, the judge emphasized.
The judge also asked the counsel whether Article 239 (5) of the constitution was ever challenged in courts. The provision bars the courts from taking up any challenge to the constitutional amendments and inserted in the constitution through the eight amendment with a condition that the martial law imposed by late Gen Ziaul Haq would only be lifted if the parliament adopted the amendment.
Could any amendment to the constitution by parliament under the pressure of a military dictator be called a voluntary amendment, asked Justice Khosa, adding that 27 features of the basic structure in India had been identified and the list was growing.
The answer came in negative though Mr Khan argued that the provision was discussed in different cases, but was never challenged separately.
During the proceedings, Justice Mian Saqib Nisar asked the counsel to elaborate what were salient features or the basic structure of the Pakistan constitution.
During proceedings, Justice Khosa referred to famous NRO case in which Justice Jawwad S. Khawaja in his separate note had observed that courts could not enter into the minefield of doctrines as it would lead to disaster.
At this Justice Khawaja elaborated that in his opinion there was no room for any doctrines, including the doctrine of necessity or any other.
Whether the basic structure is a doctrine, quipped Justice Nisar. It should be better described as a principle or rule of interpretation, replied Mr Khan.
Mr Khan tried to establish that the amending power of the parliament was derivative in nature and not a constituent authority and nullification of any fundamental right would be a direct attack on the basic structure of the constitution.
The constitutional amendments are subject to limitation since complete immunity to the parliament to amend anything will disturb the concept of check and balance or to put in another way parliament’s authority to amend at will was incompatible with the basic structure doctrine, Mr Khan argued.
Published in Dawn, May 6th, 2015