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Revisiting basic structure

July 17, 2012


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.