About basic constitutional structure

Daily: The Statesman
Date: 21.07.10

Pakistan has finally entered the phase when the concept of independence of the judiciary is
going to be defined not only in terms of what the (higher) judiciary can do independently
but also in terms of what space the (higher) judiciary leave vacant for the government (the
legislature and the executive) to operate.

At the discussion forums, the argument ‘parliament is supreme’ has been reduced to
‘parliament is sovereign’ and the ‘constitution is supreme’. That is a good omen: things are
settling down to normalcy and concepts are getting clearer. It took some Pakistanis a plenty
of time to appreciate that the constitution was a product of a constituent assembly and that
the constitution so framed gave birth to the three pillars of the state: parliament (the
legislative assembly), the executive and the judiciary. Within the same context, another
concept emerged: no pillar of the state could trespass on the limits prescribed by the
constitution.

The executive need not lament on the balance of power sans them as in the parliamentary
form of government, envisaged in the Constitution of 1973, the executive is answerable to
the prime minister who is both legislative and executive head of the state. That is what the
relevance of the argument ‘parliament is supreme’ could be: parliament is supreme vis-à-vis
the executive and that is how the third pillar of the state, the judiciary, stays free, separate
and independent.

In a way, the discussion seems weird because more than sixty years have been passed
since birth of the country but the discussion on such a fundamental topic has erupted now.
The concept of sovereignty of parliament was ensuring independence of parliament
primarily of the clutches of the executive. In Pakistan, the past witnessed encroachment of
the executive upon the legislature (violating the concept of sovereignty of parliament) by
cultivating another concept called doctrine of necessity. Given the spells of martial laws
(high-handedness of the executive) and the complacency-cum-complicity of the judiciary in
the past, it is not too late to debate the issue and reset the future itinerary of
constitutionalism.  

A legislative assembly cannot tinker with the basic structure of the constitution devised or
agreed on by a constituent assembly. Majority of the Pakistanis – using common sense –
seem agreeing to this statement. But the question is Article 239 (5) says that “no
amendment of the Constitution [1973] shall be called in question in any court on any
ground whatsoever” and Article 239 (6) says that “for the removal of doubt it is hereby
declared that there is no limitation whatever on the power of parliament to amend the
Constitution”.

One of the reasons of presence of Article 239 (5 & 6) could be that the term ‘basic
structure’ of the constitution was not mentioned explicitly in the Constitution of 1973.
Secondly, no one imagined that the judiciary would tear down its attire of complacency-cum-
complicity and would instead start defending its domain as a separate and independent
pillar of the state. Thirdly, in the past, no one challenged the Article in any court of law.

A layman definition of the basic structure could be that basic structure comprises the
principles on which the building of a constitution is erected. In other words, what objectives
a constituent assembly intends to achieve by drafting a constitution are components of the
basic structure.

In the case of Mahmood Khan Achakzai vs. Federation of Pakistan [PLD 1997 SC 426], the
Supreme Court threw light on components of the basic structure after considering the
Objectives Resolution when read with other provisions of the Constitution. There are six
components need to be highlighted in this regard: federal structure of the state,
parliamentary form of government, sovereignty of parliament, independence of the
judiciary, protection of the minorities (and their rights) and Islamic colour of the Constitution.
Interestingly, in the Objectives Resolution, both sovereignty of parliament and
independence of the judiciary are written together.

In fact, every constitution of the world is developed on certain principles called the basic
structure – and to achieve certain objectives, again as enshrine in the basic structure. In
the case of Pakistan, the mother of all the future constitutions was Objectives Resolution.
To elaborate the point further, if the Constitution of 1973 is considered redundant and
another constituent assembly is elected with a mandate to frame another constitution,
Objectives Resolution would again serve as the provider of principles to erect the
constitution and objectives to achieve by framing the constitution (in that sense, the
Objectives Resolution should not have been made a part of the Constitution). Secondly, the
Constitution of 1973 is not the last and permanent one but Objectives Resolution is
indispensable. Thirdly, had Objectives Resolution not been a part of the Constitution
through the 8th Amendment, significance of the Resolution could not have been minimized.
Hence, only the presence of Objectives Resolution is important: whether or not it is a part of
any constitution is irrelevant. Similarly, whether the case Mahmood Khan Achakzai vs.
Federation of Pakistan is taken into consideration or not, significance of the Objectives
Resolution cannot be overlooked.

Now the question is can Article 239 (5 & 6) overrule the principles laid down in Objectives
Resolution. In other words, can a legislative assembly pass an amendment amending
Objectives Resolution? The answer is in negative. It is pertinent to mention here that no
subsequent constituent assembly can alter Objectives Resolution. Mere presence of
Objectives Resolution itself imposes a limit on the domains of both the legislative assembly
and the executive. Hence, Article 239 (5 & 6) needs to be reviewed by Parliament: the
article is in contravention of the spirit of Objectives Resolution.

Before bringing the 18th Constitutional Amendment into effect, opinion of the higher
judiciary pertaining to the mode of appointment of judges was not sought. That is an
example how the judiciary was looked down on. The attitude of Parliament (ruled by any
political party) cast a spell of disaster on the future of the judiciary. It is a high time that the
boundaries and the powers of the judiciary and the legislature were discussed and
demarcated especially in the light of Objectives Resolution. The concept of independence
of the judiciary closes any door from where any political or executive interference may take
place.

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