One fine evening in 399 BCE, as the sun was about to set, Socrates, son of Sophroniscus, drank a cup of hemlock and ended his life in a prison cell while those around him mourned the death of one of the wisest men in history. Socrates was a rational man. He had denounced the Hellenistic religion and rejected the deities that the Athenians worshipped. This did not sit well with the majority of citizens, who, in an open and democratic court, condemned him to either death or exile. The old man chose the former.
The incident raised some fundamental questions about the nature of democracy. Can rule by the people lead to tyranny? Can the collective judgment of the majority sometimes be deeply flawed? These questions are just as relevant today as they were two millennia ago.
After the recent general election (GE) in India, Rahul Gandhi claimed to have saved India’s democracy by preventing Modi from securing a two-third majority in Parliament. But what would have happened if the Modi government, often compared to the Nazi regime, had attained that majority? The world still vividly remembers how the Reichstag Parliament, which represented the German people, ratified the horrors of the Third Reich. How, then, does one safeguard a nation from populist excesses while upholding democratic principles?
One way of doing so is to declare certain parts of the Constitution, including Fundamental Rights, unamendable. These parts comprise the “basic structure,” or, as referred to in Pakistani jurisprudence, the “salient features” of the Constitution. The ‘basic structure’ doctrine in India evolved through the landmark Kesavananda Bharati case[1] of 1973, where the Indian Supreme Court held that Parliament had no power to amend the ‘basic structure’ of the Constitution. The judgment did not define that structure, leaving it to be determined on a case-by-case basis. A few years later, in the Minerva Mills case,[2] the court made further efforts to define these essential features by including the following within the ambit:
- the separation of powers;
- the secular character of the state; and
- the harmonious balance between Fundamental Rights and Directive Principles of State Policy (DPSP).
The judiciary in Pakistan assumed the power to strike down constitutional amendments only recently. In District Bar Association (Rawalpindi) v Federation of Pakistan,[3] probably the most significant case in Pakistan’s constitutional history, the Supreme Court affirmed its power of review over constitutional amendments. The case involved the Eighteenth and Twenty First Amendments to the Constitution. It addressed pivotal issues at the heart of Pakistani democracy, including:
- the establishment of military courts;
- disqualification on the grounds of defection; and
- judicial appointments.
A full bench of 17 judges heard the case, with 10 authoring opinions. The majority, for different reasons, agreed to the powers of judicial review over constitutional amendments. The plurality opinion, authored by Justice Azmat Saeed and supported by 7 other judges, relied on the ‘salient features’ doctrine to support their conclusion. Justice Saeed identified 4 salient features of the Constitution that formed the touchstone of a judicial review of this nature. They included:
- parliamentary democracy;
- federalism;
- independence of the judiciary; and
- the rule of law.
Surprisingly, the judgment contained no reference to fundamental rights, which were of prime concern in the Kesavananda Bharati case and one of the essential reasons for the existence of the ‘basic structure’ theory.
There were other issues with the plurality judgment. For one, it inadequately addressed the ouster of jurisdiction in Article 239 (5) of the Constitution. The concerned Article expressly states that:
“No amendment of the Constitution shall be called in question in any court on any ground whatsoever.”
By no stretch of the imagination or intellectual gymnastics could the court interpret it harmoniously with the powers of judicial review over constitutional amendments. There was no alternative but to strike it down in order to make room for the ‘salient features’ doctrine. In a similar vein, Article 239 (6) of the Constitution unequivocally says that,
“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.”
Any provision means any provision. However, “…the court’s doubts were not removed,” and it overcame this barrier in the same manner as the Indian Supreme Court did in the Kesavananda Bharati case, where the majority held the following:
“The amendment power under Article 368 does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure of the Constitution.”
Such reasoning portrays the judiciary’s attempt to secure its independence on one hand while avoiding confrontation on the other. Not striking down the amendments in question was a representation of this reluctance to engage in conflict with the legislature. However, a line needs to be drawn somewhere, particularly when safeguarding the judiciary from potential parliamentary encroachments in the future.
The judiciary was never as anxious about the excesses of Parliament. In fact, in no prior judgment did this court ever explicitly announce its power to strike down constitutional amendments. Arguably, the court did attempt to define the ‘salient features’ of the Constitution in cases like Asma Jilani[4] and Ziaur Rehman,[5] among others, but it never claimed judicial review power on that basis. Even in the Zafar Ali Shah case,[6] on which the plurality relied, wherein it was held that General Musharraf would not be entitled to amend the salient features of the Constitution, the court’s observation about Parliament also lacking those powers was a mere sidenote, without any implications for the main issues. It was an obiter statement, that too of minimal significance, and, of course, without binding authority.
Only after Parliament began to spread its wings in the judicial domain through the insertion of Article 175-A via the Eighteenth Amendment did the judiciary become vigilant. Further, the ‘salient features’ doctrine is still not established. While a majority of the judges concurred on the judicial review powers in question, only a plurality invoked the ‘salient features’ doctrine and outlined its components. The US Supreme Court in CTS Corp. v. Dynamics Corp.[7] held that,
“…[where] the plurality opinion…did not represent the views of a majority of the Court, we are not bound by its reasoning.”
The same judgment was relied upon by Justice Bandial for the majority in Chaudhry Parvez Elahi v. Speaker. A case, however, can be made that while the judges who explicitly relied on the ‘salient features’ doctrine were a plurality, a majority did approve of it, albeit without naming it. For example, Justice Qazi Faez Isa and Jawad S Khawaja both relied on the Preamble, or the Objectives Resolution, as the touchstone against which to invalidate a constitutional amendment. The Preamble, in that sense, may qualify as a salient feature. However, this still leaves unresolved a fundamental question: what exactly constitutes those salient features?
While the courts in Pakistan grapple with this complex issue, legal scholars must reflect on several critical questions. Why should unelected judges have the authority to determine the ‘basic structure’ of the Constitution? Did the framers of the Constitution ever intend for certain parts to be unamendable? In this context, it is imperative to consider Justice Bhagwati’s observation in the Kesavananda Bharati case:
“…if this court says so, then the people may take the law into their own hands, which will invite lawlessness and chaos.”
References
[1] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
[2] Minerva Mills Ltd. and Ors. v. Union Of India and Ors. AIR 1980 SC 1789
[3] District Bar Association (Rawalpindi) v Federation of Pakistan PLD 2015 SC 401
[4] Asma Mani v. Government of the Punjab, PLD 1972 SC 139
[5] State v. Ziaur Rahman, PLD 1973 S.C. 49
[6] Zafar Ali Shah v. General Pervez Musharraf. PLD 2000 SC 869
[7] CTS v. Dynamics, US Supreme Court [481 US 69 (1987)]
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
