Basic structure Theory – Part I
Abstract: There is no such academic theory of Basic Structure in the constitutional jurisprudence of Pakistan, unlike India. Supreme Court of Pakistan from the very beginning has refused to recognize such flimsy theory. The Objectives Resolution though an important document but it does not have such sweeping powers to control or strike down other provisions of Constitution. Therefore, unlike Indian Parliament, there is no implied or expressed restriction of the Pakistani Parliament to amend Constitution because the Articles 238 and 239 which provide amending process in the Constitution, oust the jurisdiction of any Court to question the Parliament’s power to amend. Therefore, 21st and 18th Constitutional Amendments are not ultra vires of the Constitution hence upheld. Supreme Court and High Courts of Pakistan have powers to make judicial review of any decision taken by the military courts hence fundamental rights issue is also resolved by retaining judicial power against military decisions.
In consequence of horrible, inhuman and brutal attack on Army Public School Peshawar on 16th December 2014 wherein about 142 innocent students including teachers were mercilessly killed unprecedentedly in terror related history of Pakistan, the Parliament unanimously brought 21st Constitutional Amendment in the Constitution whereby Military Courts were established to try terrorists.[1] Consequently, Pakistan Army Act 1952, Pakistan Air Force Act 1953 and Pakistan Navy Ordinance 1963 were also amended to effect 21st Constitutional Amendment.[2]
This amendment was challenged by almost 39 petitioners on different grounds. The 18th Amendment which was introduced in 2010 by Constitutional Reforms Committee was pending in the Supreme Court of Pakistan because Supreme Court through Interim Order while deciding the case of Nadeem Ahmed, Advocate v Federation of Pakistan[3], referred back the portion of 18th amendment related to appointment of judges for the superior judiciary, for reconsideration with direction, to Parliament. Parliament by adopting 19th Constitutional Amendment had accepted the directions of Supreme Court for composition of judicial commission for the appointment of judges. Senator Mian Raza Rabbani, Chairman of the Constitutional Reform Committee, has very candidly praised the wisdom of Supreme Court in Nadeem Ahmed case wherein Parliament’s sovereignty was observed and he said as under:-
“The actual significance of the Constitution (19th Amendment) Act, 2010, is that it sends a message of the aging of institutions, respect for the trichotomy of functions specified in the Constitution and mutual institutional respect. The Supreme Court through its Orders dated 21st October, 2010 acted with wisdom and in accordance with the Constitution and law. The Parliament reciprocated with dignity, addressing the majority of the concerns pointed out in the Supreme Court Order regarding Article 175A. The prophets of doom who had predicted a clash of institutions were proven wrong by this exemplary instance of the strength of constitutionalism, political maturity and the rule of law.”[4]
The issues confronted in these petitions, challenging 21st Constitutional Amendment more or less were:
- Whether there is a basic structure theory of Constitution which cannot be amended?
- Is there inherent restriction on Parliament to make legislation or Amendment to the Constitution?
- Articles 238 and 239 of the Constitution oust the Jurisdiction of Supreme Court when it says “any Court” for any amendment to be judicially reviewed?
- Can Objectives Resolution as a preamble or as a substantive part of the Constitution in shape of Article 2A control other provisions of the Constitution or any other provision of the Constitution can be struck down on the touchstone of Objectives Resolution or Article 2A?
- Does establishment of Military Courts tantamount to abridge the Independence of Judiciary?
- Fundamental Rights, inter alia Article 10A which protect Fair Trial and Due Process of Law is violated by 21st Constitutional Amendment?
The question of basic structure theory of the Constitution has been haunting for decades[5] to the Supreme Court of Pakistan and got primacy in this case. This doctrine is projected by different names viz; basic structure theory or basic feature or salient features of the Constitution. The precedents presented by the supporter of this theory are borrowed from Indian Supreme Court which has recognized the basic structure theory in a much quoted/trumpeted case of Kesavananda Bharti v State of Kerala[6], though this case was decided by very narrow margin of 7:6, with the deciding vote of Justice Khanna.
In Pakistan, first time, the issue of grundnorm came up before Supreme Court in Asma Jillani v Federation of Pakistan[7] wherein Dosso case was under reconsideration. Chief Justice Hamoodur Rahman while giving opinion said that in any event, if he needs to find out grundnorm[8], then he does not need to seek it in western philosophy because it is well defined in Objectives Resolution that sovereignty over entire universe belongs to Allah Almighty[9]. In the same year, a Lahore High Court judge encouraged by this opinion of Chief Justice had given undue weightage to Objectives Resolution as supra-Constitutional instrument which can control the provisions of the Constitution and held that provisions of the Constitution can be struck down on the touchstone of Objectives Resolution[10]. The High Courts in the country had been giving a split decisions on the status of Objectives Resolution but Supreme Court remained consistent in this regard and held that Resolution cannot be granted such a status to control the provisions of the Constitution. The State filed an appeal in the Supreme Court against the LHC decision. Chief Justice Hamoodur Rahman in State v Zia-ur-Rahman[11] explained that honorable Judge of the Lahore High Cpurt has erred in construing the ratio expressed in Asma Jillani case.[12] He opined that he just expressed his wish with condition and not recognized the objectives resolution as basic structure theory of the Constitution which can control the other provisions of the Constitution. He further said that unless any instrument become the part of the Constitution, it cannot enjoy such role. Through this judgment another ambiguity left open to different interpretation of this ratio. Up-till now Objectives Resolution remained as Preamble of the Constitutions of Pakistan 1956, 1962, 1972 (Interim Constitution) and finally 1973. But after remarks of Chief Justice Hamoodur Rahman that “……..unless it becomes the substantive part of the Constitution……..” The Objectives Resolution was made substantives part of the Constitution as Article 2A by the dictator General Zia ul Haq through P.O. No. 14, 1985 and this amendment ratified by the Parliament through 8th Amendment. In Hakim Khan Case[13], the issue of status of Resolution or Article 2A was once again confronted in the Supreme Court of Pakistan. Chief Justice Nasim Hassan Shah, comprehensively and exhaustively elaborated the history of objectives resolution passage by Constituent Assembly. He accepted the importance of this resolution without any doubt but he categorically declared that 2A which is Objectives Resolution cannot be granted power to test of repugnancy of any provision of the Constitution on the touchstone of it. In numerous judgments before Supreme Court, individual judges accepted the Salient Features of the Constitution but majority never accepted Article 2A/Objectives Resolution as a the test of repugnancy or contrariety. In the same judgment, one of the Judges had said that if Article 2A is given power to strike down the provisions then Constitution of Pakistan will have to be re-written afresh.[14] The Honorable Justice Fazal Karim, while summing up the status of Article 2A has categorically denied that Article 2A has a role to strike down any of the provisions of the Constitution and Superior Courts cannot be granted this power in the garb of Judicial Review. He further added that constitutional amendment and law-making task is the domain of the Parliament which is the representative body of the people. He cited a very important Para of the judgment by Ajman Mian, the then Chief Justice SHC:[15]
In a very famous case of Al-Jehad Trust,[16] Chief Justice Syed Sajjad Ali Shah, while concluding his judgment, had very categorically given his opinion that Supreme Court cannot strike down any provision on any ground nonetheless inconsistent with any provisions of the Constitution. He drew support and took reliance from the two important cases Fazulul Quader Chaudhry and Hakim Khan and held that:-
“………….We are not striking down provisions (4), (4‑B) and (5) of Article 203‑C as void being inconsistent with Article 209 but we do say that, keeping in view the rules of interpretation, if there is choice between two forums or provisions, then the provision beneficial to the affected Judge should have been adopted or resorted to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the constitutionality of Article 203‑C of the Constitution. The Constitution is to be read as a whole and if ‑there is any inconsistency, the same can be removed or rectified by the Parliament. In support of the proposition, reliance can be placed on the cases of Fazlul Quader Chowdhry v. Muhammad Abdul Haque (PLD 1963 SC 486) and Hakim Khan v. Government of Pakistan (PLD 1992 SC 595).”
Mr. Abrar Hassan, Sr. Advocate Supreme Court of Pakistan, while concluding his research article said that Supreme Court or any other court does not have any power/jurisdiction to strike down any provision of the Constitution. It is a fundamental duty of the Parliament to make any ordinary law or Constitutional Amendment in the Constitution and courts under the scheme of Separation of Powers do not have jurisdiction to strike down any Constitutional Amendment passed by the competent Parliament when such Amendment is made by observing prescribed procedure laid down in Article 238 and 239 of the Constitution.[17]
The Constitution embodies basic covenant, fundamental law and principles for the governance of a nation. Since, changes in the law of nature and societies keep changing constantly and law also follows these changes. The amending provisions of the Constitution are the mechanisms to ensure these social changes. The Constitutions are living documents which required continuous improvement according to the social change.[18]Mr. Abrar Hassan, while talking on the jurisdiction of the Supreme Court, Justice Gibson was quoted as saying:
“But it has been said to be emphatically the business of the Judiciary to ascertain and pronounce what the law is; and that this necessarily involves a consideration of the Constitution. It does so: but how far? If the Judiciary will enquire into anything beside the form of enactment, where shall it stop? There must be some point of limitation to such an inquiry; for no one will pretend, that a Judge would be Justifiable in calling for the election returns, or scrutinizing the qualifications of those who composed the Legislature.”[19]
Mr. Justice Saqib Nisar has started and concluded his judgment on a very impressive note that to whom the power of legislation lies whether in the elected Parliament or unelected judiciary. In his own words “In the end, I reiterate the point with which I began. Where should the amending power vest: in the hands of an unelected judiciary even though acting in good faith, or the chosen representatives of the peoples? As I hope is made clear by what has been said above, my answer is: the latter and not the former. Accordingly, I dismiss these petitions.”[20]
[1] 21stConstitution (Amendment) Act 2015.
[2] Pakistan Army (Amendment) Act 2015.
[3] PLD 2010 SC 382.
[4] Rabbani, Mian Raza, “A Clash of Institutions Averted 19th Amendment: A Biographer of Pakistani Federalism Unity in Diversity” Leo Books, Islamabad at Page 292.
[5] Fazal ul Quader Chaudhry, PLD 1963 SC 486.
[6] AIR 1973 SC 1461.
[7] PLD 1972 SC 139.
[8] Grundnorm is a German language word, which means basic structure.
[9] Ibid at Footnote No.7.
[10] Zia-ur-Rahman v State, PLD 1972 Lah. 382.
[11] PLD 1973 SC 49.
[12] Ibid at footnote No.6.
[13] PLD 1992 SC 595.
[14] See for detailed analysis of the status of Objectives Resolution/Article 2A, Judicial Review of Public Actions, Justice (Retd) Fazal Karim, Volume-I, at pp 30-39, under Chapter 3, Part-II, Islamic Provision.
[15]Ibid at footnote 13 at page 38.
[16] PLD 1996 SC 324, at page 410 para 93.
[17] Hassan, Abrar, “Law in a World of Change: Essays in the Memory of Justice Sabihuddin Ahmed”, Pakistan Law House, First Edition, 2012. at page 223.
[18] Ibid at footnote at 14.
[19] Eakin v Raub, [12 Sergeant & Ramble (Pa. S. Ct.) 330 (1825), 2 (1)]
[20]PLD 2015 SC ____________, (known as Military Courts, at page 239 para 186
This paper on the Basic Structure Theory consists of three parts. Part II and III are also available on the Commentary section of the website.
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.
