What basic structure doctrine?

The 18^th Amendment is less than a few days old and already it is under attack. Several petitions have been filed challenging the new provisions regarding the appointment of judges and more are in the works. While the lawyer’s community is divided, media pundits seem to have adopted the role of cheerleaders, egging the Supreme Court on to strike down these pernicious laws using the “basic structure” doctrine.

The one thing which has been missing from all of this drama is any discussion of the relevant jurisprudence.  This omission is particularly strange because Pakistan’s constitutional history in this regard is anything but a blank slate. In fact, whether or not the Supreme Court has the power to strike down constitutional amendments is not a new question. Instead, there is thirty years of uninterrupted caselaw in which the superior courts of Pakistan have repeatedly held that they have no jurisdiction –  repeat, no jurisdiction –  to strike down a constitutional amendment.

Let us begin with the famed case of State v. Zia ur Rehman, PLD 1973 SC 49 in which the Supreme Court held as follows:

“So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will confine itself within the limits set by the Constitution”

A year later came the case of Federation of Pakistan v. Saeed Ahmed Khan, PLD 1974 SC 151 in which Article 269 of the 1973 Constitution was challenged on the grounds that it sought to oust the jurisdiction of the Supreme Court. The Court’s response was again clear:

“In any event, it is not possible for us to declare that a provision of the Constitution is not law because it seeks to oust the jurisdiction of the Courts with regard to certain subjects without affecting the judicial power itself. We cannot strike it down. We can only interpret it, according to the accepted rules of interpretation and define its nature and scope.”

In 1976, the Supreme Court reiterated this view in the case of Islamic Republic of Pakistan v. Abdul Wali Khan, PLD 1976 SC 57, stating that:

“This Court is committed to the view that the “the judiciary cannot declare any provision of the Constitution to be invalid or repugnant” to the national aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to that prescribed by the Constitution.”

In 1977, the Supreme Court again rejected the argument that it could strike down a constitutional amendment, this time in the case of Federation of Pakistan v. United Sugar Mills Ltd., PLD 1977 SC 397. This case is particularly significant because the challenge here was to the 4^th Amendment which restricted the power of the courts to grant interim relief and thus directly affected judicial power. Here too, the Supreme Court upheld the amendment and rejected the basic structure argument.

“In Pakistan, this Court in the case of Zia ur Rahman has, however, firmly laid down the principle that a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as “national inspirations” or an “abstract concept” so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution.”

The other important point to note in that particular excerpt is the use of the words “in Pakistan.” In 1973, the Supreme Court of India in Kesavananda Bharati’s case had struck down a constitutional amendment. This case was cited both before the Wali Khan bench as well as the bench which decided the United Sugar Mills case. And in both instances, the Indian approach was rejected.

But if the basic structure doctrine has been so decisively rejected, why the hullabaloo? One reason is that in a series of subsequent judgments, the Supreme Court of Pakistan has noted that there are certain “basic features” of the Constitution which cannot be altered by Parliament. For example, in the case of Mehmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426, the then Chief Justice, Mr. Justice Sajjad Ali Shah identified these basic features as “federalism, Parliamentary Form of government blended with Islamic provisions.” However, in the same case, two other judges (Mr. Justice Saleem Akhtar and Mr. Justice Raja Afrasiab) pointed out that merely because Pakistan’s constitution had certain basic features did not in turn mean that the Supreme Court was to enforce these basic features. Instead, as noted by Mr. Justice Saleem Akhtar in his concurring opinion:

“It can thus be said that in Pakistan there is a consistent view from the very beginning that a provision of the Constitution cannot be struck down holding that it is violative of any prominent feature, characteristic or structure of the Constitution. The theory of basic structure has thus completely been rejected.”

In any event, the whole basic structure was then re-examined by a seven member full bench in the case of Wukala Mahaz Barai Tahaffuz Dastoor v. Federation of Pakistan, PLD 1998 SC 1263. In his leading judgment, the Chief Justice, Mr. Chief Justice Ajmal Mian, again concluded that “it is evident that in Pakistan the basic structure theory consistently had not been accepted.”But he then seemed to leave the door open for further argument by posing the following rhetorical question: “If the Parliament by a Constitutional Amendment makes Pakistan as a secular State, though Pakistan is founded as in Islamic Ideological State, can it be argued that this Court will have no power to examine the vires of such an amendment.” Finally, in the case of Zafar Ali Shah v. Federation of Pakistan, PLD 2000 SC 869, the Supreme Court held that while General Parvez Musharraf could amend the Constitution in his discretion, he could not alter the basic features of the Constitution (this time declared as “”independence of Judiciary, federalism and parliamentary form of government blended with Islamic provision.”)

So, what the Pakistani proponents of the basic structure argument then have to go on is this: (1) a stray remark in the Achakzai case (which was contemporaneously interpreted by two other judges sitting on the same bench as not validating the basic structure theory); (2) a rhetorical unanswered question in the Wukla Mahaz case; and (3) a restriction imposed on a military dictator by a court which was admittedly operating outside the Constitution.

In any event, what the basic structure fanatics seem to be missing is that these few shreds of evidence have already been examined and found wanting by the Supreme Court. In the case of Pakistan Lawyers Forum v. Federation of Pakistan, reported as PLD 2005 SC 719, a five-member full bench of the Supreme Court again examined the whole basic structure controversy from scratch and conclusively resolved it. In that case, the court first noted that “it has repeatedly been held in numerous cases that this Court does not have the jurisdiction to strike down provisions of the Constitution on substantive grounds.” The Court conceded the point that the 1973 Constitution has certain “basic features” but pointed out that this did not mean that it was the job of the judiciary to enforce those basic features. Instead, the Court observed in para 56 of that judgment as follows:

“The superior courts of this country have consistently acknowledged that while there may be a basic structure to the Constitution, and while there may also be limitations on the power of Parliament to make amendments to such basic structure, such limitations are to be exercised and enforced not by the judiciary (as in the case of conflict between a statute and Article 8), but by the body politic, i.e., the people of Pakistan.”

The same point is again made in para 57:

“Prior to Syed Zafar Ali Shah’s case, 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. The appeal in such cases was to be made to the people not the courts. A constitutional amendment posed a political question, which could be resolved only through the normal mechanisms of parliamentary democracy and free elections.”

The final conclusion is then contained in para 59:

“The position adopted by the Indian Supreme Court in Kesvavananda Bharati case is not necessarily a doctrine, which can be applied unthinkingly to Pakistan. Pakistan has its own unique political history and its own unique judicial history. It has been the consistent position of this Court ever since it first enunciated the point in Zia ur Rahman’s case that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by the appropriate political forum, not by the judiciary. [I]n the instant petitions, [this] Court cannot abandon its well settled jurisprudence.”

Judgments prior to the glorious era of judicial independence are sometimes prone to be disregarded as being from the period of de facto military dictatorship. However, the 2005 judgment in the Pakistan Lawyers Forum case is signed by both the current Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhary, as well as the current senior puisne judge of the Supreme Court, Mr. Justice Javed Iqbal. There is no stigma attached to their reputations and this judgment has yet to be set aside. It is therefore still good law.

In conclusion, the issue is not whether the current Supreme Court of Pakistan either can or should declare the 18^th Amendment to be invalid. Obviously, the Supreme Court can do so. And equally obviously, whether it ought do so is for the Supreme Court itself to decide. Instead, the point being made is that this is not a new debate and that at least so far as historical precedent is concerned, the superior courts of Pakistan have consistently held that they cannot strike down constitutional amendments. All of that may be changed in the near future. But if the Supreme Court does want to change its mind on this point, it will first have to overrule thirty years of precedent.

A shorter version of this column was published in Dawn on 23.4.10.