Why Democracy’s Case Against the Basic Structure Doctrine is Weak in Pakistan – Part II
I have argued earlier (in Part I of this comment) that the “democratic objection” to the basic structure doctrine is fairly weak, not least because it is based on the unsound and highly contestable presumption that legislatures embody the will of the people. Having demonstrated why this presumption needs to be revisited – especially in the Pakistani context – I shall proceed to test the validity of the second objection that is usually raised against the basic structure doctrine which I will refer to as the “constitutional objection”. In what follows I intend to show that, contrary to mainstream beliefs and conviction, Pakistan’s Constitution can textually accommodate the basic structure doctrine. Additionally, the notion that the basic structure doctrine is a tool for asserting judicial supremacy under the guise of constitutional supremacy shall also be squarely addressed; I will argue that this charge is weak because it is based on a profound misunderstanding of the very essence of the doctrine. Finally, I will also show that the Constitution itself contains at least one way out for a situation where the People genuinely wish to alter the basic structure of the ’73 Constitution.
The Constitutional Objection
To raise a “constitutional objection” against the doctrine is to say that it is unconstitutional insofar as it finds basis neither within the text of the Constitution nor within the norms of the constitutional framework. At the outset, two preliminary observations are worth noting: (i) at least on one level, there is an overlap between the democratic and the constitutional objections insofar as an unconstitutional rule is likely to be undemocratic (in the narrow sense) as well; and (ii) the validity of the constitutional objection can only be assessed with reference to a particular constitutional order. In other words it is neither desirable nor helpful to generalise about the constitutionality of the basic structure doctrine. Thus the present account shall assess the doctrine’s constitutional basis in Pakistan exclusively. While some Judges in the 18th/21st Amendment case have preferred to rely on previous judgments and the Preamble (Objectives Resolution) in order to discover the basic/salient features of the Constitution, these sources do not provide for any doctrinal basis under which courts can invalidate constitutional amendments. I shall place reliance on an alternative source to find this doctrinal basis under which courts have the power to declare some purported amendments unconstitutional. I believe that the key to this discovery lies in the solution to the prima facie conflict between Articles 238 and 239 of and the Third Schedule to the Constitution.
The constitutional objection in Pakistan can in fact be amplified by virtue of the fact that clauses (5) and (6) of Article 239 of the Constitution provide:
“239. Constitution Amendment Bill
(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever.
(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.”
Despite the fact that the constitutional objection – as outlined and contextualised above – represents a far greater challenge to the legitimacy of the basic structure doctrine than the democratic objection, I believe that there is a plausible argument to contest it. A close reading of clauses (5) and (6) of Article 239 of the Constitution reveals that the same are not nearly as fatal to the basic structure doctrine than would appear at first glance. What needs to be appreciated is that the words “amendment” and “amend” have fairly narrow meanings: “amend” is most commonly defined as “to make minor changes to (a text, piece of legislation, etc.) in order to make it fairer or more accurate, or to reflect changing circumstances”, while the word “amendment” is defined as “a minor change or addition designed to improve a text, piece of legislation, etc.”.
In a nutshell, this means that amendments seeking to make major changes – or to destroy the basic features of the Constitution – are not caught by the ouster clauses in Article 239(5) and (6), for they are not “amendments” within the meaning of those constitutional provisions. Thus, even in their own terms, clauses (5) and (6) of Article 239 cannot be taken to mean that the legislature’s amendatory power encompasses within it the power to totally revise and redraft the Constitution; in other words Article 239 does not accommodate constitutional revision under the garb of a constitutional amendment. There is some logic behind this: the Constitution was framed by a Constituent Assembly elected for the very purpose of framing a Constitution. All subsequent legislatures have the power to amend (i.e. to make fairer or more accurate, make minor changes to, improve, etc.) this Constitution, but not to completely reframe or redraft it, for that – having already been done by a Constituent Assembly elected for that very purpose – is beyond their mandate. As William Marbury – a renowned American lawyer, not to be confused with his namesake of Marbury v Madison fame – argued back in 1919, the power to ‘amend’ the Constitution was not intended to include the power to destroy it. Whether there ought to be some procedure for empowering an ordinary legislature to destroy and reframe a Constitution is, of course, a separate question for a separate occasion.
Notwithstanding the fact that clauses (5) and (6) of Article 239 of the Constitution were in fact inserted by a military dictator with a latent ulterior motive – to protect the self serving and radical changes to the Constitution that were imposed by him at that time and to secure his position as President of Pakistan as a condition precedent to his handing over power to the civilian government – there is potentially an inherent inconsistency between these provisions and the Constitution’s Third Schedule. The Third Schedule contains the Oaths of Office that must be taken before assuming charge; these oaths are taken by, inter alia, the President, the Prime Minister, Chief Ministers, Federal/Provincial Ministers, Members of National and Provincial Assemblies, Judges of the High Court and of the Supreme Court. The most crucial part of this oath is the following line:
“That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan.”
The key word here is “preserve”: what does a Judge or a Member of National Assembly mean when he/she vows to “preserve” the Constitution? It bears to note that this part of the oath is by no means unique or peculiar to our jurisdiction: a range of other jurisdictions, including the United States, Brazil, India, Malaysia, Ghana and Singapore employ the same use of the phrase “preserve the Constitution” in some of their official oaths. The most common dictionary meaning of the word “preserve” is to “maintain (something) in its original or existing state”. But this dictionary meaning cannot be attributed to the word “preserve” as used in the Third Schedule: when interpreting a constitutional provision, the Supreme Court of Pakistan has consistently laid emphasis on the rule of harmony whereby the entire Constitution has to be read as an integrated whole and no one constitutional provision should be so construed in a manner that destroys any other constitutional provision (PLD 2013 SC 829; see also PLD 1957 SC 219, PLD 1963 SC 486 and PLD 1990 SC 295). It is for this reason that the word “preserve” cannot be given its dictionary meaning, for the command to “maintain the Constitution in its original or existing state” would mean that no constitutional amendment could ever take effect. Placing such an interpretation on the Third Schedule would render Articles 238 and 239 of the Constitution redundant. It is therefore imperative to offer an interpretation to the phrase “preserve”, as used in the Third Schedule, that is consistent/harmonious with Articles 238 and 239 of the Constitution. One way of doing this – admittedly not the only way – is to interpret “preserve” to mean the maintaining of the basic structure/salient features of the Constitution. Such an interpretation is easily reconciled with Articles 238 and 239 of the Constitution in the light of the meaning of the words “amend” and “amendment” elaborated above.
Thus, if one were to interpret Articles 238, 239 and the Third Schedule of the Constitution harmoniously, one may discover some basis for the basic structure doctrine. A few aspects of this argument, though not all of them, were in fact raised by some of the Petitioners in the 18th/21st Amendment case before the Supreme Court. However, unfortunately only two Judges addressed those aspects, while none offered a conclusive opinion on the potential conflict between the Third Schedule and the Respondents’ interpretation of Articles 238 and 239 of the Constitution.
Is the Basic Structure Doctrine a Cloak for Judicial Supremacy?
There is of course another very specific charge that is often thrown at the basic structure doctrine: that by invoking ideas of constitutional supremacy, the doctrine serves as a cloak for judicial supremacy. Richard Albert states this charge in the following manner: there must be a bridge between the two propositions that the Constitution is supreme and that judges have the power to invalidate constitutional amendments; this bridge cannot be found anywhere other than in the premise that judges are supreme; “constitutional supremacy” is therefore nothing more than a cloak for judicial supremacy and “without this connecting premise – that judges are supreme – the principle of constitutional supremacy does not in and of itself generate the judicial authority to approve or disapprove of constitutional amendments”.
I believe that the basic structure doctrine is not susceptible to this charge. As I have emphasized earlier, amendments seeking to damage or destroy the basic structure of a Constitution are not “constitutional amendments” at all; rather they are attempts at constitutional revision, which is beyond the mandate of all legislatures other than a Constituent Assembly. The judicial authority to approve or disapprove amendments purporting to alter the basic structure of the Constitution thus stems from within the Constitution, for such amendments are not caught by the ouster clause in Article 239.
More significant is the fact that the basic structure doctrine does not envisage or allow judges to fabricate basic/salient features out of thin air. The doctrine – if applied in its entirety – recommends identifying features from within the Constitution at a general/abstract level. If indeed a judge strives to discover a basic feature that finds no support from within the Constitution, he/she would not really be applying “the basic structure doctrine” at all. When coupled with the recommended standard of review, i.e. “damage or destroy”, it becomes evident that the legislature has ample room to amend even the basic features of the Constitution as long as such an amendment does not result in an abrogation or destruction of those features.
The Way Out from the Dead Hand of the Past
Since the idea of being tied to the dead hand of the past (in the form of being bound indefinitely to some immutable constitutional values framed four decades ago) is one that haunts many, one may of course wonder how then, if at all, would it be possible to alter the basic structure of Pakistan’s Constitution. I can proceed to suggest an answer by relying on the dictum of the Supreme Court of Bangladesh in Anwar Hossain Chowdhry v Bangladesh: the framing of a Constitution takes place through the exercise of constituent power, originally vesting in the People and usually delegated by them to a Constituent Assembly. All subsequent legislatures are creatures of that Constitution, and, by extension, creatures of the Constituent Assembly. When a legislature amends the Constitution, it exercises what can at best be called derivative constituent power, flowing from the original Constituent Assembly that had exercised primary constituent power. It is for this reason that an ordinary legislature’s power to amend the Constitution must necessarily be limited and not unbridled.
I believe that the alteration of the basic structure of the Constitution is logically only possible through the exercise of primary constituent power. I have already shown why a constitutional amendment under Article 238 of the Constitution does not suffice for this purpose, for any power exercised under the Constitution is, at best, a derivative constituent power. However, if such an amendment – i.e. one that seeks to change the basic structure of the Constitution – is put to referendum, then the problem of constituent power is resolved, for ultimately it is the People who collectively hold constituent power, which had been delegated to the original Constituent Assembly. Thus, in the absence of a new Constituent Assembly, a constitutional amendment can only succeed in altering the basic structure of the Constitution if it is put to referendum. Under our own constitutional framework, it is within the discretion of the Prime Minister to refer any matter of national importance to a referendum after having obtained approval of such a reference from a joint session of Parliament, as provided for in Clause (6) of Article 48 of the Constitution of Pakistan:
“If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered by either “Yes” or “No”.” (Emphasis added.)
Although the Constitution is silent as to whether the result is binding or not, it would be no less than political suicide for any legislature to reject a decision reached through referendum, no less than it would be extremely difficult for the same to be judicially overturned. Notwithstanding the fact that a referendum carries a number of hazards and has its own limitations that are manifold, I believe that it is the only way through which the basic structure of the Constitution can legitimately be altered, for it is only through a referendum that primary constituent power can be exercised. The “way out” is thus present in black and white within the Constitution itself.
I began this comment and its prequel with the aim of showing why naïve invocations of “democracy”, particularly within the Pakistani context, are insufficient to weaken – let alone demolish – the case against the basic structure doctrine. I have shown that the standard objections against the doctrine – that it is undemocratic and unconstitutional – are, besides being based on manifestly false premises, woefully ignorant towards the significance and functions of constitutions and the sacrosanctity of constituent power. If the idea is that constitutional amendments are “democratic” and are thus capable of altering the basic structure of the Constitution, then I’m afraid ‘democracy’ has absolutely no case against the basic structure doctrine. It is only through the exercise of primary constituent power that the basic structure of a Constitution can legitimately be amended.
This article is the second 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.