At a glance, I applaud the judges of the apex court for giving their decision on the 18th and 21st Amendments the other day. The judges of the apex court gave their judgement in an excellent manner, avoiding all legal discrepancies, bizarre debates and criticism. The judgment of the apex court has been welcomed by the government and rest of the state’s departments except those that believed the commission would declare the 2013 general elections pre-poll rigged. It is believed the current judgment will promote a sense of trust and confidence between the government and Supreme Court (SC), and among rest of the state’s departments in Pakistan. The prevailing judgment of the SC has initiated a legal debate concerning the basic structure of the Constitution. Not much has been written about the basic structure of the Constitution in Pakistan apart from very few legal commentators who have made serious efforts in order to highlight this legal doctrine.
The learned Indian constitutional lawyer and author A G Noorani contends the basic structure doctrine has become law in South Asia. It simply says parliament may not, even by a constitutional amendment, “alter the basic structure or framework of the Constitution”. This doctrine has been adopted by the SC of India in Kesavananda Bharati and affirmed in later cases; Bangladesh followed India and adopted the doctrine of basic structure in Anwar Hussain Chawdhry versus the Government of the People’s Republic of Bangladesh. The basic structure theory is an academic thesis of German jurist Professor Dietrich Conray who coined the basic structure theory years ago and now countries that have written constitutions debate over whether to have a basic structure of constitution or not.
While the SC of Pakistan has made several impressive strides towards its acceptance in numerous judgements, for instance, the current judgement of the SC on 18th and 21st Amendments is quite detailed concerning the basic structure of the Constitution of Pakistan. The debate concerning the basic structure of the Constitution in Pakistan dates back to 1963 when the SC of Pakistan, while deciding the case of Fazlul Quader Chowdry v Mohd Abdul Haque, introduced expressions in its detailed judgement like “fundamental” or “essential features” of the Constitution, “fundamentals of the Constitution” or “essential features of the Constitution”, “fundamentals of the Constitution”, “basic structure of government” and so on to describe the inherent limitations of presidential power to remove difficulties in bringing the Constitution into operation. The judgment was referred to by the Indian SC in the case of Sajjan Singh versus the State of Rajasthan, acknowledging the fundamental features of Constitution.
Some of the learned judges touched upon the aspect of the salient features of the Constitution but very briefly because of which debate pertaining to basic structure is still wide open in Pakistan. The judges opined that the salient features of the Constitution of Pakistan were the independence of judiciary, democracy and a parliamentary form of government, and a few judges of the bench entailed that parliament in Pakistan may alter the Constitution through constitutional amendment and it had all legal powers to amend any article of the Constitution. It, therefore, can be said that the duty of the judiciary will be to construe the constitutional amendment (if it brings it into question) in line with the intention of parliament. It is in the writer’s opinion that the judges of the apex court should really the following in the coming years: whether the ambit of the basic structure should be enlarged from the independence of the judiciary, parliamentary form of government and democracy. Furthermore, the apex court judges should also contemplate whether there is any legal need to have a basic structure of the Constitution of Pakistan or not. It is in this writer’s opinion that the introduction of the basic structure theory in Pakistan is the only means available to avoid legal amendments by non-democratic regimes, those that come to power through undemocratic means and introduce constitutional amendments in order to form a quasi-presidential form of government, and make attempts to amend the Constitution for their own political interests, going as far as amending the basic structure of the Constitution.
That said, in my humble opinion, the “salient feature” wording used by the learned judges in the most recent judgement on the 18th and 21st amendments seems to be much closer to the basic structure theory. However, the apex court judges in the coming years should try to adopt a more open, structured approach and explain in more detail the basic structure of the Constitution. It seems like the judges of the apex courts are in favour of developing the basic structure of the Constitution so as to avoid dire legal amendments. They want to maintain the clear role of the judiciary to strike down undemocratic amendments that violate the structure of the Constitution. It is good that the judges opined that the 18th and 21st Amendments were not in violation of the Constitution and that, therefore, military courts may function in Pakistan in order to curb terrorism and conduct trials of heinous offenders for a certain period of time. The judgment is plausible and welcoming as it endorses the will of the legislature. If the court had not given such a judgement there would have been political chaos.
The theory of basic structure, which is the academic thesis of a German jurist, is yet to be followed in its spirit in order to formulate the basic structure of the Constitution. The Indian approach upon basic structure is very much open and enlarged as it has rule of law, secularism, federalism and democracy all included into the basic structure of the Indian Constitution. The debate concerning basic structure in Pakistan dates back to 1963 as mentioned above but different judges have laid down different features of the Constitution of Pakistan. However, it is in this writer’s opinion that there be a need to develop fixed and permanent features of the Constitution instead of changing and introducing new features from time to time in the Constitution.
The writer is an advocate of the High Court. He can be reached at [email protected]