Session 11: The doctrine of basic Structure

The constitution is the fundamental law and all other laws are made in accordance with the constitution. The flexibility of the constitution depends on the ease through which it can be amended. Certain unwritten constitutions are flexible in a sense that they can be amended through a simple legislative process. However, not all unwritten constitutions are flexible and this entirely depends on the amendment procedure. The constitutional amendments and the extent to which the parliament can amend the constitution has been a matter of concern for judicial institutions. Even though the judicial institutions are supreme, they do not have the authority to encroach in the powers of the legislator and strike down any amendment bill.

Pakistan has a written form of the constitution and according to article 239, two third of the total membership is required to pass a constitutional amendment. The national assembly has passed 21 amendments bills since 1973. Every time a constitutional amendment is passed, the question of the parliament’s power to change the basic structure of the constitution arises. The Supreme Court has challenged a number of constitutional amendments by arguing that they are ultra vires to the basic structure. The 18^th amendment was brought to debate in the case of Nadeem Ahmad v The Federation of Pakistan in which the issue of the judicial appointment was argued followed by the controversy of the 19^th amendment. Currently, the case of 21^st amendment, which allowed the establishment of the military courts, is a matter of concern for the courts since it is alleged of going against the basic structure. The power to strike down of any constitutional amendments on the fact that it is against the basic structure does not vest with the judiciary. No matter how salient feature of the constitution the amendment deals with, it is not within the jurisdiction of the courts to strike down any constitutional amendment.  Matters regarding the legislation and the amendments are to be solely dealt and resolved by the constitution.

Even if we accept the fact that the courts have the powers to strike down any violative amendment, the question of what constitute as the basic structure arises. The basic structure is not defined within the constitution and this doctrine seems completely vague. Today, the courts view the independence of judiciary and the teachings of Islam as the basic structure, but in future, the fundamental rights might become the integral part of the constitution in the views of the judges. Hence, we cannot risk the fate of our future generations by giving the few judges of the Supreme Court the power to decide what constitutes as the basic structure. Furthermore, the written constitutions are to be interpreted according to the needs of the evolving society. However, by introducing the concept of the basic structure we would be limiting the constitution to certain fixed principles, thus eliminating the  merits of the written constitution.

The judges should not encroach in the matters of the legislators. If such powers are given to the judiciary, the already existing conflict between the legislators and the executives would be exacerbated.