—Majid Rizvi, Ph.D. Candidate, School of Law, University of Edinburgh
In a contribution published on I.CONnect in January 2010, Richard Albert observed that the Supreme Court of Pakistan, in what was at the time a recent landmark judgment, seemed to be endorsing a view that closely approximates what is known in Indian public law as the ‘basic structure doctrine’.[1]
According to this doctrine, firmly established in Indian constitutional jurisprudence since the early 1970s, the courts enjoy an implied power to review the substance of constitutional amendments and the power to strike down those amendments that alter the basic structure of the constitution.[2]
Both the Indian and Pakistani constitutions grant powers to their national legislatures to amend their constitutional texts, in the case of Pakistan by a two-third’s majority of total membership in each house,[3] and in the case of India by a two-third’s majority of those present and voting in each house.[4] What is arresting about the basic structure doctrine in the Indo-Pakistani context is that the doctrine authorizes substantive review of constitutional amendments even though both the Indian and Pakistani constitutional texts expressly preclude such review,[5] and the task of determining what constitutes this “basic structure” is left entirely to the judges themselves.
Whether the basic structure doctrine formed part of the corpus juris of Pakistan remained unclear until very recently.
On August 5, 2015, the Supreme Court of Pakistan issued its decision in Constitutional Petition No. 12 of 2010 etc. [hereinafter “C.P. 12/2010 etc.”]—a 17-judge decision that spans 902 pages and that squarely addresses the question of the proper place of the basic structure doctrine in Pakistani constitutional jurisprudence.
In C.P. 12/2010 etc., various constitutional petitions were filed challenging the legality of a constitutional amendment that introduced a new procedure for judicial appointments and another amendment that empowered military courts to try criminal cases involving a particular class of individuals.[6] The most significant question before the Supreme Court, for present purposes, was whether there exist any implied substantive limits on the powers of the Pakistani Parliament to amend the Constitution of Pakistan.
In a plurality opinion, eight judges[7] held that there are, indeed, implied substantive limits on the powers of Parliament to amend the Constitution:
This Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.[8]
The salient features that this plurality opinion identified were democracy, a parliamentary form of government, and judicial independence.[9] It would appear that this list is not exhaustive, although the judges did hold that “[i]n an effort to discover such Salient Features material outside the Constitution cannot be safely relied upon.”[10] This plurality opinion, nevertheless, upheld the legality of the amendments in question.
Only four judges[11] rejected the notion that there are implied limits on the powers of Parliament to amend the Constitution. Among them was Justice Mian Saqib Nisar, who criticized the basic structure doctrine in the following terms:
The basic structure doctrine…has…[become] a vehicle for judicial aggrandizement of power at the expense of the elected representatives of the people. On the conceptual plane, it is devoid of merit and amounts to little more than a vessel into which the Judges can pour whatever economic, political or social theory as may catch their fancy or whim at any given time.[12]
Justice Asif Saeed Khan Khosa also rejected the basic structure doctrine, stating that “the only limitations to the Parliament’s amendatory powers are political limitations and not judicially enforceable limitations.”[13]
The remaining five justices[14] accepted that there are implied limits on Parliament’s amendment power but not all of them endorsed the basic structure doctrine. Justice Jawwad S. Khawaja said that reliance on the basic structure doctrine was unnecessary because the Constitution, when read as a whole (and including the Preamble), already places substantive limits on Parliament’s amendment power.[15] Justice Khawaja argued against a decontextualized reading of the clauses in Art. 239 that attempt to oust the Court’s jurisdiction to review constitutional amendments[16] and further noted that these ouster clauses were not part of the original Constitution and were later included in the Constitution through an undemocratic process.[17] Justice Khawaja’s opinion repeatedly made reference to “the dangers of relying on theories of political philosophy and theories which have developed mostly in foreign countries, from the history, social and political context of foreign nations.”[18] These “alien theories and philosophies, divorced from our own historical and Constitutional context”[19] that Justice Khawaja identified in his judgment, and rejected as being inappropriate for the Pakistani constitutional context, were the basic structure doctrine and the doctrine of parliamentary sovereignty:
With great respect to learned counsel who appeared for both sides, it should be stated that just like the doctrine of parliamentary sovereignty, the basic structure doctrine which took root in an alien soil under a distinctly different constitution, needs serious critical examination before being pressed into use in aid of Constitutional interpretation in Pakistan. There is need for deep examination of the rationale and specific historical background which underpins foreign doctrines. Any 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.[20]
In an opinion that made references to the poetry of Faiz[21] and Hafez,[22] as well as repeated references to “the will of the people,”[23] the differences in constitutional context that Justice Khawaja identified leave the reader (at least this reader) wondering why these differences, by their very existence, provide a solid argument against transnational constitutional borrowing.
The C.P. 12/2010 etc. judgment represents the first occasion on which the Supreme Court of Pakistan has clearly authorized substantive review of constitutional amendments on the basis that there are implied substantive limits on Parliament’s power to amend the Constitution. The decision brings Pakistan in line with its South Asian neighbors Bangladesh[24] and India,[25] both of whose apex courts have previously recognized the basic structure doctrine. Endorsing the doctrine and actually invalidating a constitutional amendment on the basis of that doctrine, however, are not the same. Whereas the apex courts of Bangladesh and India have in the past struck down constitutional amendments on the basis of this doctrine, it remains to be seen whether the Supreme Court of Pakistan will do the same in the future.
Suggested Citation: Majid Rizvi, South Asian Constitutional Convergence Revisited: Pakistan and the Basic Structure Doctrine, Int’l J. Const. L. Blog, Sept. 18, 2015, at: http://www.iconnectblog.com/2015/09/south-asian-constitutional-convergence-revisited-pakistan-and-the-basic-structure-doctrine
[1] Richard Albert, Indo-Pakistani Constitutional Convergence?, Int’l J. Const. L. Blog, Jan. 4, 2010, at: http://www.iconnectblog.com/2010/01/indo-pakistani-constitutional-convergence/.
[2] For a brief history of the doctrine in the Indian context, see Sujit Choudhry, ‘How to Do Constitutional Law and Politics in South Asia’ in Unstable Constitutionalism: Law and Politics in South Asia (Mark Tushnet and Madhav Khosla eds., Cambridge University Press 2015) (forthcoming) at 18-29. Among the leading Indian cases providing support for this doctrine are Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1641), Indira Nehru Gandhi v. Shri Raj Narain (AIR 1975 SC 2299), and Minerva Mills Ltd. and Others v. Union Of India and Others (AIR 1980 SC 1789).
[3] Constitution of Pakistan, Arts. 238-239. A bill to amend the Constitution may originate in either house and must be passed without amendment by the house to which it is later transmitted. If the bill is passed with amendment by the house to which it was transmitted, it must be reconsidered by the house in which it originated and passed by the latter by a two-third’s majority of its total membership. A bill that would have the effect of changing the limits of a province must be passed by the relevant provincial assembly by a two-thirds majority of that assembly’s total membership.
[4] Constitution of India, Art. 368. The two-thirds majority of those present and voting must constitute a majority of total membership in each house. Some types of amendment require ratification by at least one-half of the state legislatures, and certain changes to the Constitution are expressly excluded from the meaning of “constitutional amendment” under Art. 368 and, accordingly, may pass by simple majority.
[5] Constitution of India, Art. 368(4)-(5): “(4) No amendment of this Constitution…made or purporting to have been made under this article…shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.” Constitution of Pakistan, Art. 239(5)-(6): “(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.”
[6] The Acts under challenge were the Constitution (18th Amendment) Act 2010, the Constitution (21st Amendment) Act 2015, and the Pakistan Army (Amendment) Act 2015.
[7] Namely Justice Anwar Zaheer Jamali, Justice Amir Hani Muslim, Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Sarmad Jalal Osmany, Justice Gulzar Ahmed, Justice Mushir Alam, and Justice Maqbool Baqar.
[8] C.P. 12/2010 etc. at p. 371.
[9] ibid.
[10] ibid 370 (emphasis added).
[11] Namely Chief Justice Nasir-ul-Mulk, Justice Iqbal Hameedur Rahman, Justice Mian Saqib Nisar, and Justice Asif Saeed Khan Khosa.
[12] C.P. 12/2010 etc. at p. 536.
[13] ibid p. 635.
[14] Namely Justice Jawwad S. Khawaja, Justice Qazi Faez Isa, Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry, and Justice Dost Muhammad Khan.
[15] C.P. 12/2010 etc. at p. 118.
[16] ibid p. 92ff.
[17] ibid p. 95ff.
[18] ibid p. 91.
[19] ibid p. 160.
[20] ibid p. 118.
[21] ibid p. 104.
[22] ibid p. 161.
[23] E.g. ibid pp. 104, 106, 107.
[24] Anwar Hossain Chowdhury v. Bangladesh, 1989, 18 CLC (AD).
[25] See n. 2 and cases cited therein.
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