When an attempt was made at the 1943 Delhi Session of the Muslim League to commit the future Constitution and state of Pakistan to be based on the Quran and Hukoomat-e-Illahiya, Mohammad Ali Jinnah ensured that the draft resolution would be vetoed
After the recent Supreme Court (SC) judgment on the 18th and 21st Amendments, the constitutional issue of basic structure has come up yet again. Does the Constitution of Pakistan have a basic structure? Should it have a basic structure? The issue revolves around Articles 239 (5) and 239 (6) that state: “(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 whatsoever on the power of the Majlis-e-Shoora (parliament) to amend any of the provisions of the Constitution.”
Ironically, this idea that a constitutional amendment in Pakistan would not be called into question in any court was added through the Revival of the Constitution of 1973 Order, 1985 (president’s order no 14 of 1985), Article 2, item 48 with effect from March 2, 1985 and Constitution (Second Amendment) Order, 1985 (president’s order no 20 of 1985), Section 3 with effect from March 19, 1985. It was an addition by the military dictator General Ziaul Haq. His reasons must have been sinister for he wanted to change the very structure of the Constitution from a parliamentary form of government to a presidential form and to maul it beyond recognition. Yet it is this principle that is also championed by liberals and progressives for the obvious reason: so long as this principle is accepted, at a future date, it will be open to the people of Pakistan to choose a more secular form of government.
The eight judges’ opinion authored by Justice Shaikh Azmat Saeed has not gone so far as to declare a basic structure to the Constitution. Instead, they have used the term “salient features” of the Constitution and while they have not exhaustively defined “salient features”, the salient features they have relied on to keep the door open for the SC’s constitutional review seem to be parliamentary form of government, democracy and independence of judiciary. In essence, the largest number of judges in this full court has opined that if parliament seeks to undermine the parliamentary form of government, democratic principle or affect the independence of the judiciary, the judiciary would be well within its powers to intervene and strike such a constitutional amendment down. The honourable judges did not find the 18th and 21st Amendments as being in violation of the salient features. They also read into the law a requirement for the inclusion of the SC in judicial appointments as the key feature of the principle of independence of judiciary. One must disagree on this count for that would mean that the judiciary in, say a country like the US, is not independent because the judges there are chosen by the executive and confirmed by the legislature.
In contrast to Justice Saeed’s opinion, there was the opinion of CJ of Pakistan Nasirul Mulk, which was also signed by Justice Iqbal Hameedur Rahman. It held that the SC had no right of constitutional review whatsoever and that a constitutional amendment could not be called into question. Justice Saqib Nisar and Justice Asif Saeed Khosa took a similar dim view of the basic features or the Basic Structure Theory. The central plank of this opinion is that judicial appointees to the SC cannot overrule the collective wisdom of the elected representatives of the people of Pakistan in matters of constitution making. A future historian at a much later date will no doubt look back at this opinion and hold it to be an eternally correct one. Justice Nasirul Mulk, Justice Saqib Nisar, Justice Asif Saeed Khosa and Justice Iqbal Hameedur Rahman will go down in the history of this country as amongst its most enlightened voices of reason, who attempted to set the record straight but were unable to carry the consensus of the court. Yet this means great things for the future.
There were some judges, notably Justice Ejaz Afzal Khan, who attempted to find a place for Islam in the basic structure of the Constitution by seemingly arguing that the Pakistan Movement itself was about creating Islamic polity. Here one does not want to go into whether the contention is correct or not but one must point out that the Muslim League, the founding party of Pakistan, never passed any resolution committing Pakistan to an Islamic polity. When an attempt was made at the 1943 Delhi Session of the Muslim League to commit the future Constitution and state of Pakistan to be based on the Quran and Hukoomat-e-Illahiya, Quaid-e-Azam Mohammad Ali Jinnah ensured that the draft resolution would be vetoed, calling it a “censure” on every Leaguer. Jinnah argued that the “Constitution and the government will be what the people will decide”. Therefore, the attempt to find a firm commitment to Islamic polity in the Pakistan Movement is a red herring.
The basic structure/salient features debate is going to go on for a long time in Pakistani courts. In the opinion of this writer, broad contours of democracy may well be the salient feature that ought to be preserved. What is unacceptable, however, is to commit Pakistan irrevocably to any idea and to bind future generations to any ideology. At this point, Pakistan is a parliamentary form of republic with a blending of Islamic provisions but that may not be what our future generations choose to be. Future generations cannot be bound by the wisdom, or lack thereof, of today.
Finally, one must praise Justice Jawwad S Khawaja, whose opinion otherwise one has reason to disagree with, for bringing up the issue of the elections to reserved minorities’ seats. Recommending a direct election to these seats, Justice Khawaja stated: “It would be equally tragic if the minorities (despite the historic promises of the Quaid-e-Azam and every other leader) come to regard themselves, on account of the new Article 51 as second class citizens or the children of a lesser god, forever to remain subservient to the majority’s goodwill and unrepresented by their own chosen representatives.”
It is hoped that the federal government takes note of this very timely advice.
The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address email@example.com
Basic Structure? | By Yasser Latif Hamdani