(In this guest post, Aratrika Choudhuri, a student at the National University of Juridical Sciences, Kolkata, discusses the recent discussion of the Pakistani Supreme Court on the basic structure doctrine)

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The Supreme Court of Pakistan (“SCP”), by an overwhelming majority of 13 out of 17 judges, recently held that it has intrinsic powers to review the constitutionality of a constitutional amendment passed by the Parliament. While the 902 page judgment has been hailed as an ostensibly favorable instance of the current trend of Asian nations (e.g. Bangladesh) to uphold the Basic Structure Doctrine (“BSD”), an in-depth analysis shows that the BSD was not adopted in Pakistan in an identical manner to India. In fact, a different doctrine was developed and upheld- the Salient Features Doctrine (“SFD”). Due to the considerable befuddlement surrounding this area, this essay analyses the SCP’s interpretation of SFD in the understanding of Pakistan’s unique politico-constitutional history, and critiques its understanding of the differences between BSD and SFD.

Put very briefly, the Basic Structure Doctrine, as enunciated in the landmark Indian case Kesavananda Bharati v. State of Kerala, implies that the Constitution of India has certain immutable basic features, which cannot be damaged or destroyed by constitutional amendments enacted by the Parliament, and that the Judiciary has power to strike down such amendments. While the Supreme Court of India has deliberately and steadfastly refused to provide an exhaustive list of “basic features”, it has variously held – inter alia – democracy, republicanism, secularism and judicial review to be part of the basic structure.

In the SCP’s decision, the petitions challenging the 18th Amendment (laying down a new procedure of judicial appointments) and 21st Amendment (setting up a series of military courts to try cases involving terrorism) to the Constitution were heard together as they involved a common constitutional question as to whether there are any limitations on the powers of the Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment. The SCP, by aforementioned majority, answered both questions in the affirmative, saying that Article 239(5) (“no amendment of the Constitution shall be called in question in any court on any ground whatsoever”) and Art. 239(6) (“for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Parliament to amend any of the provisions of the Constitution”) still left room for judicial review of constitutional amendments.

The majority verdict asserted that, from State v. Zia Ur Rahman to Nadeem Ahmed v. Federation of Pakistan, the SCP has consistently held that the BSD has been recognized only to the extent of identifying salient or fundamental features of the Constitution. On the other hand, Chief Justice Nasir-ul-Mulk’s opined that the foundations of arguments for BSD in Pakistan are shaky (p. 38)- (1) a stray remark in Mahmood Khan Achakzai v. Federation of Pakistan merely identifying three basic features- federalism, parliamentary form of Government, blended with Islamic provisions (contemporaneously interpreted by two other judges sitting on the same bench as not validating the basic structure theory); (2) a rhetorical unanswered question in Wukala Mahaz v. Federation of Pakistan (“If the Parliament by a Constitutional Amendment makes Pakistan as a secular State, though Pakistan is founded as an Islamic Ideological State, can it be argued that this Court will have no power to examine the vires of such an amendment?”); and (3) a restriction imposed by the SC on military dictator Pervez Musharraf, in Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan from altering the afore-mentioned basic features. Nowhere, however, has such a basic structure as commonly understood in India to be left deliberately vague and undefined, been recognized by the SCP.

The Chief Justice, along with Justice Rahman, argued that the difference in politico-judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a foreign jurisdiction like India, cannot be similarly applied “unthinkingly” to Pakistan (especially when there is ample dissent in Kesavananda itself), and that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by appropriate political forums (e.g. parliamentary democracy), not by the judiciary (p. 77). Justice Nisar, concurring, made a passing remark that the earlier trend of passing draconian amendments (e.g., the 5th amendment seeking to “tame” the judiciary, as evinced in Article 280 of the Constitution of Pakistan) has generally ceased and therefore, unlike their Indian counterparts, recent constitutional amendments in Pakistan generally have a unique beneficial intent and effect (p. 535-536). This argument appears to attribute the very “heroism” to elected representatives, which he denounced in case of the Judiciary, and seems optimistic in its assumption that the Parliament would not relapse into such tyranny (1).

Justice Khawaja argued that, on an organic reading of the Constitution, the Parliament’s power to amend the Constitution is constrained by limitations which are both political and subject to judicial review, that the expression “amendment” (ordinarily implying correction and improvement) does not extend to abrogation or destruction and, therefore, SCP has the power to strike down a Constitutional amendment which transgresses these limits (p. 90). He affirmed that the Preamble, on account of its clarity in issuing nine People’s directives, is unlike the hopelessly vague Indian Constitution’s Preamble, and therefore judges in Pakistan need not rely on individual proclivities to circumscribe powers of State organs, like Indian judges do (p. 132-133). The dispensation of representatives’ fiduciary obligations in Pakistan would thus be reviewable by the Judiciary, through the mechanisms provided by the Constitution itself– the un-amendable Salient Features embodied by the Objectives Resolution 1949, and not through resort to the polemical realm of abstract philosophical theories, or to extra-constitutional material. Thus, the intractable conundrum of identifying a constantly shifting “supra-constitution” (whose provisions themselves are unknown and identified on a case-by-case basis), despite their immutability in legal prescription, emblematic of judicial aggrandizement and autocracy, could be avoided in Pakistan (p. 522).

 However, even the SFD as recognized by Khawaja, differs from the SFD recognized by the 8 judges in concurrence with Justice Azmat Saeed- while the former rooted them in the Preamble, the latter said that the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features” (p. 371). While they did not provide an exhaustive list, the 8 judges expressly recognized that Democracy, Parliamentary Form of Government and Independence of Judiciary “are certainly included in the Prominent Characteristics, forming the Salient Features” (p. 234). Thus the 13 judges who approved the SFD themselves did not articulate a unanimous theory of what the SFD precisely entails, and whether the prominent features of the Constitution or judicial discretion would reign supreme while interpreting Salient Features, which may lead to potentially very different implications.

Moreover, the Chief Justice opined that subsequent incorporation, of the amended Objective Resolutions 1949, (which was originally just a manifestation of the founding fathers’ desires while enacting the Constitution, and hence could not be interpreted as supra-constitutional grundnorm in the face of clear language of the Constitution itself) as substantive part of Constitution under Article 2A, through the 8th amendment, makes it difficult to accept it as an integral, basic feature of the Constitution initially promulgated (p. 73). Justice Khosa posits that acceptance of any one of the basic features as a touchstone or a test of repugnancy or contrariety qua the other provisions of the Constitution would render the entire Constitution vulnerable to challenge in courts of law (p. 585). This would inevitably call for value judgment by the courts instead of allowing the people deciding as to what is good for them, which “would bring serious damage and destruction, if not doom,” to the present constitutional system in Pakistan (p. 586). Further, Justice Nisar asserted that the opening words of the resolution “…the will of the people of Pakistan to establish an order -Wherein the State shall exercise its powers and authority through the chosen representatives of the people” succinctly delineates sovereignty and authority in the body of elected representatives, not judges (p. 474). Nonetheless, as Justice Isa mentions in passing, it may also be argued that substituting the inanimate State with ‘the people’ reveals the precedence of the body-politic over their representatives, and owing to the transient nature of Parliament for prescribed period, it cannot preserve, protect and defend the Constitution at all times- a function which the Judiciary is oath-bound to fulfill (p. 862). Thus widely different strands of interpretation of Pakistan’s constitutional history and epistemology are observed in the judgment.

Thus the SCP’s verdict does not explain how a scheme reflecting the Constitution’s Salient Features which define the Constitution is realistically different from a basic structure, especially when the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features”. It is open to question how far Justice Khawaja’s own cautionary words against mindless transnational borrowing- “grafting of an alien concept onto our body politic otherwise, is as likely to be rejected as an alien organ transplanted in a human body” – have been actually heeded by him and the judges who delivered the majority verdict. This attempt to chart a neutral middle path between complete non-interference and the BSD fails to distinguish itself materially from the BSD, even after the presentation of afore-mentioned arduous and long-drawn arguments.

It is pertinent to mention that critics such as Babbar Sattar have opined that the judgment allows the court to irresponsibly appropriate power for itself, diverting attention from the narrative that roots public support for military courts, in the failures of Pakistan’s criminal justice system, such as failings in ‘due process’ and ‘fair trials’ before ordinary courts, now widely regarded as a sanctuary for terrorists. It is also noteworthy to mention that the concomitant vital question- whether such institution of military courts, without any technical or operational discussion of international and national counterterrorism practices which would actually aid in ending the internal war in Pakistan- has been studiously ignored.

• See Dietrich Conrad’s famous argument, widely attributed to be the foundation of the BSD in India- “Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. So, if for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamilnad and Hindustan proper? Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period – discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.”