Basic structure, again

EVERY few years, questions regarding the limitations of parliament’s power to amend the Constitution, and the Supreme Court’s jurisdiction to review, and if necessary, strike down constitutional amendments, become issues of great public interest.
This time around, these questions are being raised in response to the 26th Constitutional Amendment, and expectations that the Supreme Court should strike down certain changes for violating the principle of the independence of the judiciary.
The Constitution itself appears clear on the matter: Article 239(5) and (6) expressly state “no amendment of the Constitution shall be called in question in any court on any ground whatsoever”, and even more categorically, “for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-i-Shoora (parliament) to amend any of the provisions of the Constitution”.

Before 2015, the Supreme Court considered the scope and meaning of Article 239(5) and (6) in multiple judgments, but did not reach a definitive conclusion. This changed in 2015, when a full-court bench of the Supreme Court heard petitions challenging the 21st Amendment to the Constitution together with the challenge to the 18th Amendment, which had been pending since 2010.
A majority of 13 judges of the Supreme Court found parliament’s powers to amend the Constitution are limited, and it is the Supreme Court — the “guardian of the Constitution” — that would determine what those limitations are, and if they are transgressed, have the power to strike them down. The judges, however, suggested a number of different interpretations on the precise content and source of those limitations.
According to the majority opinion, authored by Justice Azmat Saeed and endorsed by seven other judges, there are implied restrictions on parliament’s power to amend the Constitution “so as not to substantively alter, repeal or abrogate the salient features of the Constitution”. The majority opinion held that it was not necessary to conclusively determine the salient features of the Constitution at this point. However, “democracy, parliamentary form of government and independence of the judiciary are certainly included in the prominent characteristics, forming the salient features”.

The judges reasoned that all questions about what kind of a country Pakistan was going to be were resolved through consensus in the 1973 Constitution. Any attempt by parliament to reopen those debates and reimagine Pakistan would risk “unleashing political tempests of unparalleled fury which may be difficult to control”.
The majority also held the power to amend does not include a power to destroy. Therefore, Article 239(5) and (6) do not permit parliament to “destroy” a salient feature of the Constitution through a constitutional amendment.
Justices Jawwad S. Khawaja and Qazi Faez Isa authored separate opinions, but both were by and large in agreement over their reasoning and conclusions.
They rejected the “basic structure doctrine” (coined by the Indian supreme court to review constitutional amendments), which they considered an “alien” theory born in a foreign land. They reasoned that given Pakistan’s unique context, the limitations on parliament’s powers to amend the Constitution were not found in the structure of the Constitution, but in the preamble, which was an embodiment of the nation’s social contract and “aspirations for a future order”.
No parliament, therefore, had the power to alter the principles enshrined the preamble, including “democracy, freedom, equality, tolerance and social justice, as enunciated by Islam” and independence of the judiciary.

Justice Isa, rather curiously, also reasoned the Constitution mentions the Supreme Court by name when its jurisdiction is to be ousted. Since Article 239 did not expressly mention the Supreme Court but instead used “any court”, there was no bar on the Supreme Court to review constitutional amendments.
It is important to remember that even though the majority accepted the possibility of the apex court striking down constitutional amendments, it did not consider any of the amendments being challenged in violation of the “salient features” of the Constitution. No amendment, therefore, was actually “struck down” by the court.
Four judges including chief justice Nasir-ul-Mulk, justice Iqbal Hameedur Rehman, justice Asif Saeed Khosa, and justice Saqib Nisar rejected any limitations on parliament’s powers to amend the Constitution.
Justice Saqib Nisar stated matters of governance must be decided by the chosen representatives of the people, and should not be left at the “mercy of the collective wisdom of unelected judges”, who “are the least accountable branch and in Pakistan”. He argued the “basic structure” doctrine, as adopted by the Supreme Court in India, was “a vehicle for judicial aggrandisement of power at the expense of the elected representatives of the people”.
Justice Khosa raised another important concern, and asked that even if the preamble and the salient features of the Constitution expressed the will of a past generation, why should the Supreme Court hold future generations hostage to it? Surely, “if at some future stage the people of this country have a change of heart or mind … then the will of the people will have its way and the aspirations of yore or yesteryears may not be able to shackle it”.

The minority view is jurisprudentially and constitutionally far more convincing than the majority’s opinion. As long as a constitutional amendment is passed in a manner that is procedurally sound and in accordance with the requirements of the Constitution, the Supreme Court does not — and should not — have the power to “strike down” amendments that they consider contrary to the “salient features” of the Constitution.
This does lead to frightening possibilities, particularly when we consider a parliament that breaches all norms of democracy, transparency, and public participation in its constitution-making functions.
However, the temptation to find judicial solutions to political problems should be resisted. As justice Khosa wisely pointed out, if courts disturb or undermine the balance of power between institutions provided in the Constitution by striking down constitutional amendments on substantive grounds, the judiciary may claim to have the last word, but “parliament may have the last laugh”.
The writer is a lawyer.
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Published in Dawn, November 2nd, 2024