Daily Times

The 17 Member Bench of the Supreme Court in the case of District Bar Association, Rawalpindi and  others rejected the challenges thrown at 18th and 21st Constitutional Amendments. Significantly though, the Court recognized the variant of basic structure to our Constitution. Writing for the majority, Justice Azmat Saeed wrote: “There is an inherent integrity and scheme to the Constitution evidenced by certain fundamental provisions, which are its Salient and Defining Features.” The parliament now while exercising its constituent powers cannot repeal, abrogate or substantively alter the provisions that are the Constitution’s “salient” or “defining” features.

Its significance is three folds: Salient or defining features is effectively the same as doctrine of basic structure to Constitution; secondly it places an inherent check on the power of the parliament to amend the Constitution; and thirdly the superior Courts can now examine and strike down a Constitutional amendment on the basis of salient or defining features.

Who finds salient or defining features? The honourable judges.  There is little in the text of the Constitution to suggest what is or isn’t a salient or defining feature.  Judges who dissented on basic structure made such textualist arguments. Majority that justified the basic structure relied principally on the Court’s precedents. The majority opinion also stated that it was not necessary to prescribe the complete scope of salient features of our Constitutional scheme and confined itself to the features that were relevant for the adjudication at hand. Apart from, “Democracy, Parliamentary Form of Government and Independence of the Judiciary”, the Islamic character of the Constitution as enshrined in Article 2A has also been recognized by Courts as defining or salient feature of the Constitution – but more could be added. In future, judges may also refer to the speeches in the constituent assembly to ascertain the intent of the framers in arriving at salient or defining features or judges could simply rely on the chequered constitutional history of the country to invent one.

The judgement in District Bar Association ushered in a new era of extension of judicial authority with a chilling impact on separation of powers. Our apex court created a power for itself that had until now not existed. The consequence of this is that the parliament’s constituent powers have been significantly curtailed — what is left is a mere shadow of its former powers

This is too much power with the non-elected body – reminiscent of medieval monarch. For judiciary to review a change in the Constitution, the scope of which travels well beyond procedural challenges, on the basis of subjective approach of basic structure; doesn’t it make our apex Court a supra constituent body? Chief Justice Saqib Nisar while he concurred with the conclusion of majority disagreed on basic structure and cautioned: “If we were to introduce such a doctrine into Pakistan would not critics be entitled to speculate whether the nation has changed a military autocracy for a judicial autocracy, with but a brief interval for an improperly functioning democracy.”

The Indian Constitution in a series of judgments during and post Indira Gandhi’s term, starting from Kesavananda Bharati’s case, established the basic structure doctrine within India. The purpose there, apparently, was to protect the Constitution from Indira’s misguided ambitions. In our context, trust deficit in politicians  is understandable. In our context, the role of apex Court championing the cause of democracy is also questionable.  So we need to move forward. As a Constitutional principle, in democracies judicial review is a limited check, ancillary only to the political processes, to fetter parliament or executive’s power on the touchstone of the Constitution. But the power to review and even strike down Constitutional amendments, that too on the basis of what judges think is or ought to be the basic structure of the Constitution. It  completely changes the power dynamics of coordinate branches. There should be a greater disinclination, even distrust, in concentrating too much power in one non-elected coordinate branch.

The judges while deciding the challenges thrown at 21st and 18th Constitutional Amendments, played the long game, and reserved for themselves a greater role as the final arbiter to decide legality of amendments to the Constitution. In addition, to the traditional tests such as corum non judice, the apex Court would now apply the doctrine of basic structure. The Court could also apply the test laid down by Justice Jawwad S Khawaja in his dissent. He penned: “We possess, in the shape of the Preamble to the Constitution, the surest possible grounds for examining constitutional amendments. The Preamble of the Constitution is a charter comprising nine commands ordained by the people of Pakistan for all instrumentalities of the State, including the Parliament and the Judiciary.” And added “…Parliament does not have the power to make any lawful amendments to the Constitution that manifestly defy any of the commands contained in the Preamble. If such amendments are indeed made, it would then be the duty of the judiciary to strike them down…”. This may become a determinative test for future Courts, in limiting the scope of constituent power of the parliament, together with the doctrine of basic structure, or even outdo it!

The judgment in District Bar Association ushered in a new era of extension of judicial authority with a chilling impact on separation of powers. Our apex Court created a power for itself that had until now not existed. The consequence of this is that the parliament’s constituent powers have been significantly curtailed – what is left is a mere shadow of its former powers despite the command of Article 239 on the contrary. This change in power dynamics would be critical in the new round of challenges before the apex Court to the proposed Constitutional amendments. Brace yourselves.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, November 11^th 2017.