Why Democracy’s Case Against the Basic Structure Doctrine is Weak in Pakistan – Part I
The Judgment of the Supreme Court of Pakistan upholding the constitutionality of the 18th and 21st Amendments to the Constitution has revived the debate surrounding the merits and applicability of the basic structure doctrine, according to which there are implied substantive limits on the legislature’s power to amend the Constitution. These limits consist of the Constitution’s “basic” or “salient” features; thus any amendment that repeals, abrogates or “affects the essential nature” of these features is liable to being struck down. Although it formally received judicial recognition by the Supreme Court of India in Kesavananda Bharati v State of Kerala, the idea of implied limits originates from the works of Aristotle and the distinction that he drew between a constitution’s “real” and “physical” identity.
The revival of the debate in Pakistan stems from the fact that 13 out of the 17 Judges accepted the notion of there being implied substantive limits on the legislature’s power to amend the Constitution against which the court was fully empowered to test the legality of all constitutional amendments. The Court has therefore accepted the most crucial premise of the basic structure doctrine. By virtue of, inter alia, its judicial origins, the doctrine represents a highly controversial expression of constitutionalism. This note aims to play down the controversy by considering the validity of objections to the doctrine, especially in the Pakistani context. I will argue that the objections to the basic structure doctrine are often overplayed and ignorant towards the significance of constituent power. While it is possible to formulate objections to the doctrine in multiple ways, the present account shall assess the first of two overlapping charges: (i) the doctrine is inimical to democracy (the general “democratic objection”); and (ii) the doctrine, under the guise of constitutional supremacy, is in fact an instance of judicial supremacy (an example of what I will refer to as “the constitutional objection”).
The Democratic Objection
This objection usually relies on the following narrative: if an apex court holds certain constitutional principles to be immune from amendment, it acts against the central tenets of democracy because such rulings dictate that the wisdom of a few judges will prevail over the people’s collective will. In other words, adopting the doctrine means that no legislature – not even a unanimous one – can amend these basic features. This objection, though very grave in nature, is unfortunately based on an unduly idealized vision of the democratic credentials of legislatures.
The democratic objection is based on a two-step premise: (a) that since legislatures are the representative organ of the state, their decisions/enactments are an expression of the “will of the people”; and (b) that it is thus wrong for judges to pass independent moral judgments to invalidate any decision or enactment of a legislature. However, this premise is not uncontested: as Dimitrios Kyritsis convincingly demonstrates , in practice legislators too often exercise “independent moral judgment” that need not comply with the wishes of the their constituents / “the people”. He highlights that legislators are not proxies of citizens; rather, they are more accurately described as citizens’ trustees. Under the trustee model of representation, “the set of wishes and convictions of voters is neither immutable nor inviolable”. Thus the objection to constitutional review on the ground that it encourages making judgments that are independent from the views of ordinary citizens is misplaced because elected representatives too can and do act independently of the views held by their constituents.
Many would respond to this by saying that there is nothing wrong in a legislator using his independent moral judgment because legislators collectively offer “the best approximation of popular will”. However, such a response is based on a misconstruction of how significant and commonplace independent judgment really is in the routine work of a legislator. The more pressing issue therefore is to identify the right institutional means to operate checks-and-balances on the legislature’s power. Kyritsis finds judicial review to be the best institutional means because courts are impartial, independent and (usually) immune from the sort of political pressures faced by legislatures. One may of course object to judicial checks-and-balances by arguing instead that political checks-and-balances represent a better institutional means: if a legislator’s independent judgment is so repugnant to the views of his/her constituents, the biggest penalty for that legislator is to be voted out of office in the next election However, such views tend not only to underestimate the potential scope for abuse between one election and the next, they also overlook the various legislative pathologies and blind-spots that cannot be overcome through political checks-and-balances.
With reference to Pakistan in particular, there is perhaps nothing more deceptive than the premise that constitutional amendments represent an expression of the “will of the people”. To demonstrate this I need not rely on the image of a seasoned Senator conveying his assent to the 21st Amendment in tears for having voted against his conscience. In fact, I need only refer to Article 63A of the Constitution to bring out the hopelessness of the idea that constitutional amendments are an expression of the will of the people:
“63A. Disqualification on grounds of defection, etc.
If a member of a Parliamentary Party composed of a single political party in a House—
(a) resigns from membership of his political party or joins another Parliamentary Party; or
(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to—
(i) election of the Prime Minister or the Chief Minister; or
(ii) a vote of confidence or a vote of no-confidence; or
(iii) a Money Bill or a Constitution (Amendment) Bill;
he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy thereof to the member concerned:
Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.
Explanation.- “Party Head” means any person, by whatever name called, declared as such by the Party.”
The effect of Article 63A is that the ultimate control over whether or not a constitutional amendment is to be passed vests with the Party Head(s) who need not even be an elected Member of the National Assembly. If a legislator – a presumed representative of the people – wished to vote against his Party Head on a particular Constitution (Amendment) Bill, he/she would risk losing his membership of the National Assembly on grounds of having “defected”. Thus, at best, a constitutional amendment in Pakistan under the present framework is capable of reflecting nothing more than the will of Party Chiefs whose political parties comprise two-thirds of the National Assembly. It would be an utter travesty to equate the will of Party Chiefs with the will of the people.
It must be clarified here that the purpose of questioning the soundness of the democratic objection is simply to enable one to view matters from a more informed viewpoint. While the objection is based upon an underestimation of the distance between legislators and their constituents, this does not by any means make the basic structure doctrine democratic and/or legitimate. What it does bring out however is the fact that not only is the democratic objection often overstated and in need of some contextual downplaying, it is incapable of conclusively demolishing the case in favour of the doctrine, especially in view of Article 63A of the Constitution of Pakistan.
This article is the first of an intended two-part piece aimed at laying the ground for a defence of the basic structure doctrine.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.