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Pakistani Constitution and the Basic Structure Theory


by Umer Gilani
(Originally written in 2009 as a response paper for Constitutionat Law III)
 
Introduction
 
Even before the 18th Amendment to the Constituion of the Islamic Republic of Pakistan was passed from both houses of the Parliament, a number of petitions were filed before the Supreme Court of Pakistan, challenging its constitutionality. While the draft of these petitions is not currently available to me, it seems only likely that the petitioners are making recourse to what is known in constitutional discourse as the 'basic structure theory'; judicial review of a constitutional amendment is an unusual practice and and there are not many grounds which a petitioner seeking it may press. It has therefore become ever more important to look at the 'basic structure theory', its genesis and possible scope in our constitutional jurisprudence. In fact, the Supreme Court has constituted a 5-member bench which includes distinguished jurists, including Jawad S. Khwaja, to hear the petitions. One expects that when the bench, or the full court, if the need be, delivers its judgment, it would examine these questions in a befitting manner.
 
In the first part of this paper, I have tried to explain the basic structure theory in the context of its historical genesis. My rudimentary research into the matter suggests that this doctrine evolved primarily as a response to the subversion of constitutional democracy in Nazi Germany. Its historical context shows that, being the product of a world-historic event, this theory has potential significance for all constitutional democracries and merits a closer examination by scholars of law and politics. I've also briefly looked at how this doctrine eventually found acceptance in Indian jurisprudence and thereafter made an entry - albeit a partial one - into our our Supreme Court's judgments.
 
In the second part, I have looked at the development of this doctrine at the hands of Pakistan's Supreme Court. The overall picture is uncertain and confused; and just because it is uncertain, this situation is also pregnant with possibilities.
 
I have concluded by suggesting the Supreme Court's reliance on the 'basic structure theory' or it's close cousin 'salient features' doctrine seems linked with the overall constitutional climate in the country; the theory assumes prominence only when the judges perceive that there are great and imminents threats to the core of the constitutional set-up; otherwise, they are reluctant to exercise this most daring form of judicial review.   
 
 

Understanding the Basic Structure Theory:  An Historical Approach

 

The basic structure theory, in my opinion, is best understood when seen in the light of its historical genesis.[1]

 

In the year 1919, Germany abolished the monarchical system in favour of the Weimar Constitution. In 1933, soon after getting elected, Adolf Hitler made a very clever move: he got a constitutional amendment passed which effectively passed on to him and his cabinet the power to amend the constitution.[2] In short, without having technically violated it, he managed to subvert the entire constitutional apparatus. Paradoxically, his word became the constitution. The result is known to well to history.

 

In the 1949 constitution of West Germany, known as the Basic Law, an article 79(3) was added to avoid the sort of a subtle subversion perpetrated by Hitler. This article reads: "Amendments to this Basic Law affecting the division of the Federation into L√§nder, their participation on principle in the legislative process, or the principles laid down in Articles 1 to 20 (dealing with fundamental rights and federal democratic structure) shall be inadmissible." As a result, while the constitution allowed for a procedure for amending some of its articles, others were entrenched so deeply that nothing could ever change them. Tricks of the sort Hitler had played would be unconstitutional in the new system.

 

This insight from Germany's experience with the degeneration of constitutional democracy was conveyed to India by a German academic[3]. In Golak Nath's case[4], this proposition was forcefully propounded but the court, by a slim majority, rejected it. The court felt that the question of "implied limitations on Parliament's power to amend the Constitution had not arisen before it because the Parliament had effected changes to only one part of the constitution and not the whole."

Six years later, however, in Kesavananda's case [5] the same court was more willing to confront the issue of implied constraints on the legislature's power to amend the constitution. The context of this change was the increasingly authoritarian nature of Indra Gandhi's regime. Just as Hitler has once embarked on a drive to centralize power at the expense of the Constitution, Indra was now governing with little regard for constitutional niceties. Given the similarity in circumstances, the Indian Supreme Court made a very wise decision in taking a leaf from Germany's book.

The court laid down the ruling that remains in force to date and has also been followed by courts in various other jurisdictions. The court held "that Article 368 of the Constitution "does not enable Parliament to alter the basic structure or framework of the Constitution."[6] This idea of the basic structure has been partially adopted and adapted by courts in Pakistan also.

On the basis of this discussion, I think that the term "basic structure of the constitution" is a concept that the courts have employed to tame legislatures which are often dominated by the executive – and to keep the two from committing the sort of horrors that Germany experienced from 1933 to 1945. At the same time, the courts should, and often do, define the basic structure quite narrowly so that the legislature's space for political maneuvering is not unduly constrained.

 

Basic Structure Theory and Pakistan's Constitutional Jurisprudence: A Case of Shifting Stands

 

In the beginning, the Pakistani judiciary acted rather timidly in the exercise of its powers and this attitude was equally reflected in the field of judicial review.[7] If you look at it like this, it becomes clear that the basic structure theory lays down the groundwork for a most daring form of judicial review:  it allows the judiciary not just to vet the constitutionality of laws and executive actions on the touchstone of the constitutions, but allows it to subject constitutional amendments to the test of compliance with the basic structure of the constitution. Accepting this theory, in effect, mandates a much more expansive role for the judiciary. In the early years of this country, when the judiciary was not even confident enough to exercise ordinary judicial review powers, it is only understandable that it chose not to assert this daring theory which would vest it with enormous powers.

 

It is in this context then that we can sympathise with the stance taken on this matter by the Supreme Court of Pakistan in the case of Islamic Republic of Pakistan v. Khan Abdul Wali Khan.[8] The court held there that it could not hold any provision of the Constitution to be invalid or repugnant to the national aspirations of the people and that the validity of amendments can only be challenged if it is adopted in a manner different from that prescribed by the Constitution. In other words, the court would allow procedural challenges against the constitutional amendment and not substantive challenges based on the basic structure theory.

 

It was in the case of Mahmood Khan Achakzai v Federation of Pakistan[9] that the court partly conceded the basic structure theory although the majority judgment seems to be against the adoption of this theory. Justice Sajjad Ali Shah held: "In Pakistan instead of adopting the basic structure theory or declaring a provision of the Constitution as ultra vires to any of the fundamental rights, the court has pressed into service the rule of interpretation that if there is a conflict between the two provisions of the Constitution which is not reconcilable, the provision which contains the lesser right must yield in fovour of a provision which provides higher rights…" In short, Sajjad Ali Shah suggests that some rights might be more basic than others and would thus prevail; needless to add that that the determination of which rights these are will be left to the judiciary.

 

The judgment of Ajmal Mian in Wukala Mahaz Case[10] cleverly draws upon Sajjad Ali Shah's earlier judgment but subverts its potential by reading into it quite a different interepretation. It concludes that based upon the earlier reasoning, the court is  "inclined to hold that … an irreconcilable conflict between two provisions of the Constitution … is to be resolved by applying the above principle of interpretation. It is not necessary to press into service the basic structure theory."

 

In "Judicial Review of Public Actions", Justice Fazal Karim summarizes the rather confusing position of the law in Pakistan as of now by outlining a two-step approach: first, the courts will try to harmonize two provisions of the constitution that are apparently conflicting; only if they have absolutely now way of doing this first will they move on the second which is that they will temporarily prefer one provision over the other but none will be declared void.

 

Conclusion:

 

That said, in my humble opinion, the question of the basic structure theory is far from settled in this country. One the one hand, the seeds for change laid in Mahmood Khan's case were kept from flowering by the Court's sleight of hand in Wukala Mahaz case; but, on the other hand, no perceptive reader of Pakistani Supreme Court judgments can ignore the court's repeated referrals to "salient features of the Constitution" – features which, in Zafar Ali Shah's case[11], were held to be beyond the reach of any amendments that even the all-powerful dictator could make. The 'doctrine of salient features' may not be the same as the much more potent 'basic structure theory', but it does have the jurisprudential potential for evolving into something of that sort. Here, it is critical to note that this most forceful articulation of the "salient features doctrine" that we get from the Supreme Court of Pakistan is posited in response to the dire circumstance of a military take-over. Under extreme circumstances a court which was otherwise forced to concede amending power to the dictator nonetheless sought to preserve the core of the constitution by putting it beyond his reach – under the protective garb of the salient features doctrine. If another such situation arises where the court is convinced of an imminent existential threat to what it feels is the core of the constitution, the court might well adopt the basic structure theory.        



[1] My account relies heavily on A.G.Noorani's article: "Behind the 'basic structure' doctrine : On India's debt to a German jurist, Professor Dietrich Conrad."

[2] The amendment, passed with more than two-thirds majority in the Reichstag was called "Law to Remedy the Distress of the People and the Nation. Article 2 of the this law, that is now often referred to the Enabling Act of 1933 states: "Laws enacted by the government of the Reich may deviate from the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat." The law was temporary having a life-cycle of four years but, because Hitler remained in power, it was renewed time and again.

[3] Reference is made here to Professor Dietrich Conrad.

[4] AIR 1967 S.C. 1643 I.C. Golak Nath & Ors. vs. The State of Punjab & Ors

[5] Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461,

[6] Ibid. Italics mine.

[7] The roots of this attitude might be traced back to the legacy of colonialism. Firstly, the British judiciary itself was relatively timid compared to its American counterpart, and thus the former's ward – British India's judiciary was also relatively timid; secondly, the apparatus of the Raj relied heavily on the executive which inevitably forced the judiciary into a relatively compliant posture.

[8] Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57

 

[9] Mahmood Khan Achakzai v Federation of Pakistan, PLD 1997 SC 426

 

[10] Wukala Mahaz. Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263

[11] Zafar Ali Shah v. Gen Perved Musharraf  PLD 2000 SC 869