The Supreme court of Pakistan has been wrangling with a hefty constitutional question for several months now – perhaps the most fundamental question a constitutional court can be called on to determine; does the constitution have a ‘basic structure’ i.e. does it contain certain norms which cannot be infringed against under any circumstance. It is accepted legal practice that any bill passed by a simple majority in the parliament that is not compatible with the constitution must be declared null and void. Of course the constitution itself can be modified if the parliament can muster a two thirds majority; and therein lies the question, is there a limit to this modification, or does the legislation have complete freedom once it musters the requisite numbers. This debate is not a theoretical one, it is prompted by recent events; and so a 17-judge full court, headed by Chief Justice Nasir-ul-Mulk, is hearing petitions challenging the appointment procedure of superior court judges under the 18th Amendment and the establishment of military courts under the 21st Amendment to try hardened terrorists.
The government, represented by the Attorney General, Salman Aslam Butt, began the proceedings by addressing the question at hand – contending that the Supreme Court has no authority to strike down a constitutional amendment – but now seems to be drifting away from the debate, which will have seismic ramifications for future legislatures and judiciary, and seems to be focusing on one agenda; protection of the military courts. The federal government argued before the Supreme Court on Monday that the court had no jurisdiction to entertain a petition challenging the setting up of military courts as long as the armed forces acted in aid of the civil power; and that “validity of any direction issued by the federal government to the armed forces could not be called in question in any court”. While this is correct, the judiciary cannot challenge any specific direction given to the military – and in this context ‘direction’ means where to deploy, who to apprehend etc. The court is free to adjudicate on matters of constitutional importance, even if it has effects on the military’s actions. Unsurprisingly, the AG was informed of this summarily by the court.
Understandably the government is committed to the military courts and will always be pressured by the military to defend it at all costs; yet it must not do it at the cost of constitutional stability. If we decide today that the constitution has no inherent structure, then tomorrow any politician with a two-thirds majority can pass a constitutional amendment abrogating the democratic nature of the constitution and making himself a dictator; and the courts will be powerless to stop him, all he needs are sufficient supporters. The fact that this scenario seems farfetched is because our constitution has a basic structure; it is democratic, has an independent judiciary and protects human rights. The Supreme Court must be given the authority to declare unconstitutional the amendments that oppose this.
Basic Structure of the Constitution