The basic structure debate

As some representative bodies of the lawyers in Pakistan have formally challenged the recently-passed 21st Amendment to the constitution through various constitutional petitions in the Supreme Court, the well-known doctrine of basic structure of the constitution has become a hot topic in legal and political circles in the country once again.
In order for the apex court to strike down the said constitutional amendment, almost all these petitioners are primarily relying on the ‘basic structure’ argument in their petitions. The basic structure doctrine has gained significant prominence in the constitutional jurisprudence of Pakistan for the last two decades. According to this doctrine, the constitution of Pakistan has some salient features like federalism, a parliamentary form of government, fundamental human rights, Islamic provisions and independence of judiciary etc that jointly form the very framework of the constitution. These features are so important and inevitable that even parliament has no right to modify or destroy them through any constitutional amendment.
The origin of this oft-referenced basic structure doctrine can essentially be traced in Indian constitutional jurisprudence. The Supreme Court of India recognised this doctrine through its landmark decision in the Kesavananda Bharati case (AIR 1973 SC 1461). It was held that the constitution of India has certain basic features that cannot be destroyed or modified through amendments by parliament. Supremacy of the constitution, fundamental rights, principle of separation of power, independence of the judiciary, federalism, secularism, parliamentary system of government etc have been identified as basic features of the Indian constitution.
In 1989, by expressly relying on the reasoning in the Kesavananda case, this doctrine was adopted by the Supreme Court of Bangladesh in the Anwar Hussain Chaudhry case (41 DLR (AD) 165). Likewise, the Supreme Court of Pakistan also somehow chose to adhere to this doctrine in the Mahmood Khan Achakzai case (PLD 1997 SC 426) in 1997.
There are conflicting and contradictory judgements in Pakistan on the issue of the so-called basic structure of the constitution. This doctrine has not yet been adopted by our apex court in absolute terms. Nor has it struck down any constitutional amendment passed by parliament so far. In fact, it has been overplayed in the media in Pakistan so much that now some people really believe in its existence. The basic structure doctrine first came to limelight when the Supreme Court of Pakistan delivered its judgement in the Mahmood Khan Achakzai case. The court observed: “It is open to parliament to make amendment to the constitution of any provision of Eighth Amendment as contemplated under Article 239 as long as [the] basic characteristics of federalism, parliamentary democracy and Islamic provisions as envisaged in the Objective Resolution/preamble to the Constitution of 1973 which now stands as substantive part of the constitution in the shape of Article 2A are not touched.”
In this case, the apex court did not absolutely restrict the power of parliament to amend the constitution but merely made it conditional to the provisions of the Objectives Resolution. It mentioned a legal technicality – that a constitutional amendment could not come in conflict with any provision of the Objectives Resolution which was part and parcel of the constitution, and had somehow become its ‘grundnorm’.
After this, in the Zafar Ali Shah case (PLD 2000 SC 869), the Supreme Court did not restrict any power of parliament but that of a military dictator to change the basic structure of the constitution. Likewise, in Nadeem Ahmed v Federation of Pakistan (2010), the Supreme Court did not strike down the 18th Amendment passed by parliament but merely referred this matter to parliament for reconsideration after recoding its reservations on the newly-devised procedure for appointment of judges of superior courts.
Meanwhile, in the case of Pakistan Lawyers Forum v Federation of Pakistan (PLD 2005 SC 719), the apex court significantly tried to dissipate the entire ‘basic structure’ controversy in Pakistan. It maintained that, undoubtedly, the constitution of Pakistan has some basic features. But, at the same time, it also explained that it was not the job of the judiciary to protect them. The question of amendment in the constitution is a political one that should be determined by an appropriate political forum. It further observed that the Kesavananda Bharati case could not be applied in Pakistan blindly as it had its own unique political and judicial history.
Separation of powers is an important political doctrine that is essentially based on the very principle of ‘trias politica’. It contends that all three branches of the government – the executive, the legislature and the judiciary – should wield their powers separately and independent of each other. This principle of trichotomy of power now occupies a pivotal position in constitutional jurisprudence all over the civilised world.
Legislation is an important and basic function of the legislature. Likewise, amending any provision of the constitution is also a prerogative of the legislature as that is the body that forms the constitution. The framers of the constitution of Pakistan were also inspired by the concept of separation of powers. Article 239 of the constitution specifically recognises the unlimited power of parliament to amend any provision of the constitution. Similarly, it also restricts the jurisdiction of the courts to call in question any amendment made by parliament.
Judicial review is another legal procedure under which certain executive and legislative actions are reviewed by the judiciary. It is the only method by which the judiciary can invalidate any law found to be incompatible with the expressed provisions of the constitution. It must not be forgotten that the scope of judicial review is only limited to ordinary legislation done by a legislative body. An amendment to the constitution is always considered to be beyond the scope of this judicial power. Including Pakistan, there are many countries in the world where the judiciary exercises the power of judicial review. The issue of amendment in the constitution should not be confused with the power of the judiciary to review ordinary laws in Pakistan.
At present India is the only major country that adheres to the basic structure doctrine. There is no such thing as ‘basic structure’ in any legal lexicon all over the world. No democratic country in the world has yet recognised, or otherwise adhered to this principle. Even in India, this doctrine has frequently been criticised by various quarters. It is quite unfortunate that Pakistan, despite having a written exhaustive constitution, has often been entangled in various constitutional controversies like doctrine of necessity, basic structure, presidential immunity etc.
Since the judgement in the 18th Amendment case is also still due, therefore the apex court should decide the question of basic structure of the constitution in Pakistan for good. Let the chosen representatives of the people protect the basic structure of both the state and the constitution. An amendment made by parliament may be criticised but its power to do so should, by no means, be curtailed.
The writer is a Lahore-based lawyer.
Email: mohsinraza.malik@ymail.com