Constitutional review?

Babar Sattar

The writer is a lawyer based in Islamabad.

It is unfortunate that within a year or so of the restitution of an independent judiciary, the Supreme Court Bar Association and a few senior lawyers wish to throw away the gains of the lawyers' movement by engendering a confrontation between the legislative and judicial branches of the state. They have filed petitions challenging the 18th Amendment before the Supreme Court largely on the basis that (i) the apex court has the authority to consider amendments to the Constitution on their merit and strike them down if they are found inconsistent with the Constitution's "basic structure," and (ii) the new mechanism for appointment of judges undermines the independence of the judiciary and should thus be declared invalid.

While reasonable minds can disagree over the merit of legal arguments, the grounds taken in the petitions challenging the 18th Amendment derive no support from logic or Pakistan's settled jurisprudence. It is unfortunate that senior advocates of the Supreme Court, who ought to be aware of the plethora of unambiguous case laws generated by the Supreme Court of Pakistan over the past three-and-a-half decades (refusing to incorporate India's basic-structure theory into Pakistan's constitutional law), are unashamedly presenting their case as that of upholding the existing law of Pakistan as opposed to what it really is: an attempt to change it.

The point is not that the court cannot change its mind on a matter involving constitutional interpretation. But seasoned attorneys such as Hamid Khan, Qazi Anwar and Akram Sheikh, while vociferously presenting their case before the media and the people of Pakistan, should have exhibited intellectual honesty and acknowledged that they are once again asking the court to do what it has refused umpteen times over the last 35 years: make India's basic structure theory a part of Pakistan's constitutional doctrine and strike down constitutional amendments on its basis. (See, for example, PLD 1973 SC 49, PLD 1977 SC 397, PLD 1996 SC 426, PLD 1998 SC 1263, and PLD 2005 SC 719.)

India's basic structure theory – extremely controversial even within India, which led to a simmering confrontation between parliament and the court for almost two decades – is a flawed and inherently confused judicial concoction. The argument in simplistic terms is this: the constitution can be amended by parliament through a super-majority in accordance with its provisions, but parliament's amendment powers do not give it the right to alter the basic structure of the constitution as determined by the judiciary. This theory raises two fundamental questions: (a) how is a written constitution to be amended, and can a parliament bind successor parliaments; and (b), what are the limits of judicial review powers and whether judges make law or interpret it.

In Pakistan's case, Article 239 unequivocally states that (i) there is no limitation on the authority of parliament to amend the Constitution, and (ii) the court must not entertain legal challenges against constitutional amendments. Now, incorporation of the basic structure theory would require that the court disregard unambiguous provisions of Article 239 under the garb of constitutional interpretation, inject judicial assumptions into the Constitution that are not backed by its explicit words or provisions, and call such reliance on the personal likes and dislikes of individual judges comprising the court in giving meaning to our fundamental law as the will of the Constitution.

In doing so, it would be affirming at least three unconvincing propositions. One, the legislative assembly that promulgated the Constitution of 1973 was omnipotent, and some of the provisions that it has inscribed into the Constitution are akin to divine pronouncements that can never be altered by parliament. Two, the Constitution of 1973 is an inflexible document that cannot be changed in certain respects, even if that is what the people of Pakistan wish to do through their chosen representatives. And, three, while the judiciary derives its authority to interpret the words of the Constitution from the Constitution itself, it also has an inherent power to disregard unattractive provisions of the Constitution or determine at will that some of its provisions will trump others.

What was so special about the parliament that drew up the Constitution that its word should bind successive parliaments? The fact that we needed a constituent assembly to draft the Constitution of 1973 after the break-up of Pakistan was a historical need, and not a legal one. The constituent assembly was no more representative than the parliament presently in place. More importantly, the constituent assembly did not presume that it was omnipotent. It thus incorporated Articles 238 and 239 in the Constitution to specifically empower future parliaments to facilitate the evolution of our fundamental law in accordance with changing needs and wishes of the society.

If the basic structure theory is to be accepted, were our constitution-makers so mindless that they neither specified the basic features of the Constitution that were to be protected for all times to come nor created a mechanism to convene a constituent assembly in case the basic structure needed to be reconsidered? If this fable is to be believed, irrespective of how unsuccessful our experiment with parliamentary democracy might turn out, can we never switch to a presidential system? Or if ten, 20 or 50 years down the line an overwhelming majority of Pakistanis believes that religion should be separated from law and politics, would the only way out be to bring a revolution, overthrow the Constitution, convene a new constituent assembly and alter the court-determined "basic structure"?

It would be unfortunate if the court contrived the power to declare certain features or provisions of the Constitution as immutable and then assumed the sole right to determine what they are without any backing from the text of the Constitution. Within our constitutional system of separation of powers, the legitimate power of judicial review cannot be confused with the non-existing right to undertake a constitutional review. The court can strike down laws in exercise of judicial review powers not because a law is good or bad, but only if it is in conflict with provisions of the Constitution. But when parliament exercises its authority to amend the Constitution itself, the court's role is limited to interpreting the words inscribed therein, and not whether or not they should be in there in the first place.

In refusing to uphold India's basic structure theory, our Supreme Court has laid out a two-fold salient feature doctrine: (i) the court has no authority to strike down a constitutional amendment, and while parliament has limited authority to amend the salient features of the Constitution, it is not for the court but for the people of Pakistan to enforce this limitation; and (ii) the court would apply the rule of interpretation to reconcile seemingly conflicting provisions of the Constitution, instead of using a basic structure theory to strike down one part of the Constitution for being in contradiction with another part. Even the first leg of this salient features doctrine – that parliament's authority to amend the Constitution is limited – has no textual basis. But this doctrine is still better than India's basic structure theory where the court has usurped the right to regulate parliament's constituent powers.

Whether it is to protect the vested interest of certain lawyers groups to sponsor individuals to the bench (that the previous arbitrary judicial appointment system afforded them), the sycophantic urge to convince the apex court that it has the right to lord it over parliament, or misconceived notions of judicial independence, the petitions challenging the 18th Amendment threaten to drag the court into a political thicket.

If the court doesn't tread with caution and exercise restraint at this point, it will not only cut itself down to size and compromise its credibility due to a swing in public opinion presently backing the court, but will also inflict lasting damage on Pakistan's constitutional jurisprudence.