Professional Documents
Culture Documents
SYSTEMS
CONSTITUTIONAL AMENDMENTS
AND BASIC STRUCTURE
SPRING 2020
PARLIAMENTARY SOVEREIGNTY (SUPREMACY)
British Trinity
1. Parliament can make laws concerning anything;
2. No parliament can bind a future parliament;
3. An Act of Parliament cannot be questioned by
the Court.
Indian evolution
• Original SC position: Parliament can make any laws it
chooses.
• Golaknath case (1967 AIR 1643): amendments taking
away or abridging fundamental rights can’t be passed.
• Kesavananda case [(1973) 4 SCC 225]: basic
structure of the Constitution cannot be amended, even
via amendment. Lack of confidence in elected reps
deemed ‘unprecedented’ by the chattering class.
• Raj Narain: Allahabad High Court finds Indira guilty
of misuse of state machinery; declares election void.
Indira imposes emergency; immunises election through
39th Amendment. SC strikes it down via basic structure.
BASIC STRUCTURE WHAT CONSTITUTES BASIC IN
GONE CRAZY
• INDIA?
Supremacy of the • The principle of equality,
Constitution • The concept of social and economic
• Rule of law justice
• The principle of Separation of • The balance between Fundamental
Powers Rights and Directive Principles
• The objectives specified in the • The Parliamentary system of
Preamble to the Constitution government
• Judicial Review • The principle of free and fair elections
• Federalism (including • Limitations upon the amending power
financial liberty of states) conferred by Article 368
• Secularism • Independence of the Judiciary
• The Sovereign, Democratic, • Effective access to justice
Republican structure • Legislation seeking to nullify the
• Freedom and dignity of the awards made in exercise of the judicial
individual power of the State by Arbitration
• Unity and integrity of the • Welfare state
Nation
BASIC STRUCTURE HERE: TORTURED JOURNEY
Islamic provisions, federalism and parliamentary form of Government and fully securing independence of judiciary.
~Mahmud
‘LimitedAchakzai
Power’PLD 1997 SC 426
The power to amend the Constitution is limited and the Court cannot sit silently over the change of Pakistan from an
Islamic Ideological state to a secular state. ~ Wukla Mahaz PLD 1998 SC 1263
‘Basic features’: Halfhearted self-assertion?
The Constitution of Pakistan is the supreme law of the land and its
consideration, the issue of appointment process of Judges to the superior courts introduced
by Article 175A of the Constitution. ~ Nadeem Ahmad v. Federation PLD 2010 SC 1165
ARTICLE 239
(5) No amendment of the Constitution shall be
called in question in any Court on any ground
whatsoever.
17
Sarmad Jalal Osmany
Amir Hani Muslim Jawwad S. Khawaja
Gulzar Ahmed Qazi Faez Isa
Umar Ata Bandial Tanha Safr
Mushir Alam The Two Ejazes
Asif Saeed Khosa
Maqbool Baqar Ejaz Afzal Khan
Ijaz Ahmed Chaudhry
OPINION I: PARLIAMENT IS SUPREME
If the courts arrogate to themselves the right of not
merely determining what features are to be regarded as
“basic”, but also the right to alter the content of the
“basic features” from time to time or at any time, the
stage may, I fear, be set for a possible
confrontation between the legislative and
judicial branches. The point, it must be stressed, is
not whether the view of the courts is right or wrong—it
is more basic than that, and is this: who has the right to
amend the Constitution, the elected representatives of
the people, or the appointed judges? ~ Nisar J
Mulk, Nisar, Iqbal JJ
There are no limitations, express or implied on the powers of the
✗
✔
Basic Structure
18th
th Amendment
Parliament to amend the Constitution and the amendments
✔ Military Courts challenged on any ground whatsoever before any Court. ~Mulk
OPINION II: THE TWO EJAZES
the Constitution
There is nothing in the Constitution (Eighteenth
JSK & Qazi Faez Article 239: ‘one small cog in the Constitutional machinery and has little
significance as a standalone provision.’ (Dubious because Zia
Isa legacy/elephant Rumi parable.)
✗ 18th
th Amendment (Art. 63A)
✗ Military Courts
OPINION III: MILITARY COURTS ARE BAD
Justice Khawaja identifies the Preamble as an expression of
the will of the people, addressing directives/commands to
the executive, legislature and judiciary to act within certain
bounds in accordance with their fiduciary duty towards the
people. According to him, the judiciary must act as a check
JSK & Qazi Faez on the legislature to ensure that the legislature does not
Isa transgress the directives/commands enshrined in the
Preamble.
? Basic Structure
✗ 18th
th Amendment (Art. 63A)
✗ Military Courts
OPINION IV: YEH DUNYA JHOOTI HAI
The 18th Constitutional amendment and 19th Constitutional
Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy
Ordinance, 1961 and the Protection of Pakistan Act, 2014 and all
DMK subsequent amendments, made through ordinary legislation are
✗
18th from the Constitution as a whole.
th Amendment
✗
19th
th Amendment
✗ Military Courts
OPINION V: TANHA SAFR
In view of the clear and categorical provisions of…Article 239(5) and (6)
of the Constitution.
sway of Article 175 of the Constitution or from application and enforcement of the
✗
✔
Basic Structure
18 Amendment
th
th
fundamental rights guaranteed by the Constitution and that the military courts for
✗
Act (Act II of 2015) have not been founded on any power conferred by a
Military Courts Constitutional provision and, therefore, the ratio decidendi of the case of Sh.
OPINION VI: MAJORITY
Justice Azmat Saeed essentially accepted the contention of Mr. Abdul Hafeez
Pirzada that the word 'amendment' refers only to progressive changes made
to the Constitution; and that it was open to the Court to strike down
constitutional amendments where they are retrogressive: '...the term
'Amendment' as used in Articles 238 and 239 has a restricted meaning.
Therefore as long as the Amendment has the effect of correcting or
improving the Constitution and not of repealing or abrogating the
Constitution or any of its Salient Feature (sic) or substantively altering the
Azmat J same, it cannot be called into question.’ ~Zeeshaan Zafar Hashmi
Basic Structure
✔ J Sheikh Azmat Saeed held that the Supreme Court can strike down a
constitutional amendment if it violates what he identified as the salient
18th
th Amendment
✔ features of the Constitution. However, he decided that none of the
provisions of the Eighteenth and Twenty First Amendments that were
Military Courts
✔ challenged were violative of these salient features. ~Hashmi
OPINION VI: MAJORITY
‘In dealing with the Twenty First Amendment, Justice Azmat Saeed adopted
similar reasoning as that of Chaudhry Nisar Ali Khan when he presented the
Twenty First Amendment Bill in Parliament, to the effect that Pakistan is in
a state of war with terrorists not limited to the Tehrik-eTaliban Pakistan who
hold nothing back in killing the people of Pakistan on an almost daily basis,
noting that, according to the Attorney-General, '...since 2002 more than
sixteen thousand terrorist attacks have occurred...'88 and that 'in order to
deal with the current situation, an additional tool to counter the situation
has been provided by the way of the questioned Amendments in the
Azmat J Constitution and the Pakistan Army Act.' Justice Azmat Saeed thus accepted
Basic Structure the arguments of the Attorney-General and upheld the
✔ Twenty First Amendment, even though it exfacie would clearly impinge on
18th
th Amendment
✔ the salient feature of judicial independence that the Honourable Judge
himself identified. Military tribunals by definition are headed by military
Military Courts
✔ officers, not Judges, which is a clear usurpation of the judicial function by
the Executive. This once again displays the inherent subjectivity of the
basic structure/salient features doctrine that results in internal
contradictions in the same judgment.’
STILL DEMOCRATIC?
Kim Scheppele: argues that because of the sheer number of cases of constitutional significance
argued before the Constitutional Courts of Russia and Hungary, the courts are in fact democratic in
nature, and the counter-majoritarian difficulty as articulated in the American context does not apply
in an analysis of the constitutional schemes of post-Soviet Russia and Hungary. The fact that people
can approach these courts without lawyers means that there are few barriers to entry, and the courts
in Russia and Hungary end up deciding regularly on issues that affect the pressing issues of the
people. This analysis applies in the context of Pakistan as well, in view of the arguments elaborated
above. -Hashmi
63A. Disqualification on grounds of defection, etc.-(l) If a member of a Parliamentary Party composed of a
single political party in a House— (a) resigns from membership of his political party or joins another
Parliamentary Party; or
(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to
which he belongs, in relation to— (i) election of the Prime Minister or the Chief Minister; or (ii) a vote of
confidence or a vote of no-confidence; or (iii) a Money Bill or a Constitution (Amendment) Bill;
He may be declared in writing by the Party Head to have defected from the political party, and the Party
Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner
and shall similarly forward a copy thereof to the member concerned: Provided that before making the
declaration, the Party Head shall provide such member with an opportunity to show cause as to why such
declaration may not be made against him.
SAID ZAMAN KHAN V. FEDERATION
2017 SCMR 1249