The basic structure doctrine––first espoused by the Supreme Court of India in the celebrated case of Kesavananda Bharati v State of Kerala––allows courts to invalidate constitutional amendments on the premise that there are substantive implied limits on a legislature’s power to amend the Constitution. The doctrine is a somewhat controversial example of the successful migration of constitutional ideas, having been invoked in jurisdictions ranging from Bangladesh to Belize. The Supreme Court of Pakistan had previously leaned towards adopting a version of this doctrine. On the 5th of August this year, a very divided Full (17-Member) Bench of the Supreme Court of Pakistan announced its highly anticipated verdict in 39 Constitution Petitions through which various parties had challenged the constitutionality of the 18th and 21st amendments to the Constitution of Pakistan on a number of grounds which included, inter alia, the ground that the two amendments violated the basic structure/salient features of the Constitution. The court dismissed the challenges to the 18th and 21st amendments by majorities of 14-3 and 11-6 respectively, and in doing so it has finally determined the juridical status and applicability of the basic structure doctrine in Pakistan: a total of 13 judges out of the 17-Member Bench were of the view that Parliament’s power to amend the Constitution was subject to substantive implied limits, against which the court was fully empowered to test the legality of all constitutional amendments; the court, by accepting this premise, has thus adopted the basic structure doctrine in all but name. While there are multiple features of the 900-page judgment that are worthy of analysis in their own regard, I intend to devote this comment exclusively to the soundness of how the content of these implied limits was determined, and the standard of review that has been adopted. In what follows, I will argue that despite getting the standard of review right, the court erred in tying itself––and perhaps all future legislatures––to at least one basic/salient feature that is far too narrow, namely “parliamentary form of government”.
Out of the 13 judges who endorsed the concept of implied limits on Parliament’s amendatory powers, a plurality opinion of 8 judges sought to identify the Constitution’s “salient and defining features”. These features were said to be those “fundamental provisions” that bring an “inherent integrity and scheme to the Constitution”. (It is noteworthy that the Supreme Court of India had engaged in a strikingly similar exercise in Kesavananda, where the Chief Justice offered his famous “structural interpretation” of the Indian Constitution.) The opinion traces a number of previous judgments in order to arrive at these “fundamental provisions”, most of which have placed reliance on the Preamble to the Constitution of Pakistan, i.e. the Objectives Resolution, which was passed by the first Constituent Assembly of Pakistan, consisting of nine principles/commands that include, inter alia, the full observation of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, securing the independence of the judiciary, guaranteeing fundamental rights, and the establishment of Pakistan as a federation where constituent units are autonomous. The plurality opinion thus goes on to identify the fundamental provisions in the following terms:
“An overview of the judgments reproduced or cited herein above … reveals that this Court has referred to the Prominent Characteristics, which define the Constitution and are its Salient Features. Some of such Characteristics mentioned in the aforesaid judgments, including Democracy, Federalism, Parliamentary Form of Government blended with the Islamic Provisions, Independence of Judiciary, Fundamental Rights, Equality, Justice and Fair Play [sic].” [At pp.233-234 of the Judgment]
The opinion purports to fortify its identification of these “Salient Features” by referring to the constitutional jurisprudence of some 32 other countries where certain constitutional provisions have been placed “beyond the pale of the amendatory power of Parliament” through both express and implied limits. The nature of such constitutional provisions/eternity clauses, along with Pakistan’s political and constitutional history, seems to be the source through which the plurality opinion has eventually traced the salient features of Pakistan’s Constitution:
“On closer scrutiny, such substantive provisions of the Constitution pertaining to the ideological basis for the creation of the State, the core values which define the people are usually included in such provisions. What is also obvious where countries and people have a bitter and tragic past of oppression, dictatorship, fascism, civil war or ethnic cleansing there is a tendency to say ― “never again” and the relevant provisions of the Constitution, in this behalf, are placed outside the power to amend [sic]. Similarly, where core values or substantive provisions pertaining to the rights of the people or internal architecture of the Constitution are vulnerable the provisions, in this behalf, also tend to be excluded from the purview of the amendatory power.” [At pp.264-265 of the Judgment]
The notions of “ideological basis for the creation of the state” and “core values which define the people”, besides being highly disputable, are far too vague to serve as a sound source for discovering and entrenching basic or salient features of a constitution. However, the plurality opinion chose to lay greater emphasis on “vulnerable provisions”, observing that in the Pakistani context “the principles of Democracy, Independence of Judiciary, Rule of Law and Federalism, were repeatedly trampled upon and continue to be vulnerable and therefore need to be protected, if necessary, even from the Parliament” [at p.265 of the Judgment].
In laying down the appropriate standard of review under the “Salient Features”/implied limits theory, the plurality opinion granted a small but significant concession to the legislature and its power to amend basic/salient features:
“It needs to be clarified that the implied limitation upon the power of the Parliament to amend the Salient Features of the Constitution does not imply that such Salient Features, are forbidden fruit in respect whereof the Parliament cannot exercise its amendatory powers. What in fact and in law is prohibited, is for the Parliament to repeal or abrogate the Salient Features of the Constitution or substantively alter i.e. to significantly effect its essential nature [sic].” [At p.267 of the Judgment]
The proposed standard of review––whereby it is open for a court to strike down only those constitutional amendments that repeal/abrogate or affect the essential nature of Salient Features of the Constitution––is strikingly similar to the “damage or destroy” standard of review operative in India under the basic structure doctrine.
This brings out what is perhaps the biggest anomaly in the plurality opinion: on one hand it has identified “Parliamentary form of Government” as a salient feature of Pakistan’s Constitution, while on the other it has acknowledged the legislature’s right to amend this salient feature as long as such amendment falls short of repealing, abrogating or affecting its essential nature. But the specificity of this salient feature is such that it is now impossible for a legislature to amend it: seeking to put in place a presidential form of government would surely constitute an amendment of the “essential nature” of the salient feature of “Parliamentary form of Government”, thereby rendering such an attempt to be struck down. Thus in effect, despite claiming otherwise, the plurality opinion has indeed designated “Parliamentary form of Government” as forbidden fruit for the legislature.
As I have suggested earlier, the anomaly does not stem from the proposed standard of review; rather, it originates from the specificity of the salient feature identified as “Parliamentary form of Government” by the plurality opinion. Perhaps the more general “representative government” would have been a less stringent basic feature than the specific “Parliamentary form of government”. In fact, even the Preamble (Objectives Resolution)––which appears to be the origin of all basic/salient features––avoids reference to a parliamentary system of government, choosing instead to refer to general concepts of “democracy” and the exercise of authority “through the chosen representatives of the people”. Nevertheless, the fact that the plurality opinion has endorsed the specific over the general does not bode well for the perceived legitimacy of the controversial basic structure/salient features doctrine in Pakistan. In his book Democracy and Constitutionalism in India, Sudhir Krishnaswamy––writing with reference to the basic structure doctrine––argues that in order for basic structure constitutionalism to be compatible with democracy, it is essential that the basic features be identified at such a level of generality that allows Parliament to make substantial changes to the Constitution. I believe this is to be a very sound argument, especially because it allays the degree to which the basic structure doctrine is viewed as an undemocratic tool for judges to usurp legislative power. Unfortunately the Supreme Court of Pakistan appears to have overlooked this.
In terms of the substantive content of the two amendments that had been challenged, it is worth noting that the effect of the 18th Amendment––through which the legislature sought, inter alia, to enhance the role of the executive in the matter of judicial appointments––had to a very large extent already been watered down by the proposals contained in the Supreme Court’s Short Order of 2010 which ultimately led the legislature to enact the 19th Amendment, thereby accepting the court’s proposals. In a nutshell, the Short Order and the 19th Amendment ensure that the ultimate say in judicial appointments vests with the judiciary itself. Upholding the constitutionality of the 18th Amendment (as amended by the subsequent amendment) is thus perhaps of little significance. The upholding of the 21st Amendment on the other hand raised more eyebrows: the amendment in essence provides for the federal government to refer cases of suspected terrorists to trial by military courts, and it is a move known to have the support and backing of the military and the establishment. Given the infamous and prolonged clash between General Musharraf and ex Chief Justice Chaudhry, which had led to the latter being deposed by the former in 2007 and eventually reinstated by a democratic government in 2009, striking down the 21st Amendment could have had the potential of re-inviting the past. The court did however state that the decision to refer a case to military courts along with the order and sentence would be subject to judicial review. Despite the fact that the verdict has received support from some who argue that the right to fair trial is adequately protected even through the process followed by military courts, overall the judgment has received a mixed response.
Isaam Bin Haris is an advocate of the High Courts in Lahore, Pakistan and a lecturer in Equity and Trusts at University College Lahore, an Affiliate Centre of the University of London International Programmes.
(Suggested citation: I. Bin Haris, ‘Judicial Review of Constitutional Amendments – Pakistan’s Uneasy Subscription to the Basic Structure Doctrine’ UK Const. L. Blog (24th Sept 2015) (available at https://ukconstitutionallaw.org/))