Time for SC to decide ‘basic structure’ issue: experts

ISLAMABAD: Independent legal and constitutional experts give different opinions regarding the Supreme Court’s powers to strike down a Constitutional Amendment and hold that this is the defining moment for the apex court to decide the question whether the principle of basic structure theory applies in Pakistan or not.
According to them, the superior judiciary is facing the biggest test of its independence. Top experts Abid Hasan Minto, Khalid Anwar and Justice (retd) Wajihuddin Ahmad shared their views with The News.
Abid Hasan Minto said questions could be raised on any constitutional amendment before the apex court. “The Supreme Court has all the powers to examine whether any constitutional amendment has been made in line with the basic scheme or totality of the Constitution or not,” Minto said adding “But in Pakistan, we don’t have any example where the Supreme Court has struck down any article of the Constitution or amendment to the basic book.” Minto said that at some instances, however, the Supreme Court had interpreted some articles of the Constitution or has given suggestions/recommendations to parliament and which were incorporated by the legislature in letter and spirit.
Khalid Anwar elaborated on the issue in detail. He said that the Indian Supreme Court had struck down some articles of the Indian Constitution by introducing the “principle of basic structure of the Constitution”.
“The basic question in our case is whether the basic structure theory is applicable here in Pakistan or not,” Khalid Anwar said adding “The very same question was raised after the 18th Amendment before the Supreme Court of Pakistan which was then headed by Chief Justice Iftikhar Muhammad Chaudhry.” Khalid Anwar said the case was argued by senior counsel Abdul Hafeez Pirzada.
“Justice Chaudhry and some other judges wanted to make the basic structure theory as ‘part of the law’ but according to my information, some judges were opposed to this idea and thus the apex court avoided passing judgment on the issue and this question of law was not answered by the Pakistani Supreme Court,” added Khalid Anwar.
“In my viewpoint, the principle of basic structure theory of the Constitution does not apply in Pakistan and the apex court using such principle will be detrimental to national interests,” Khalid Anwar opined.
The Supreme Court is subject to the Constitution but Constitution is not subject to the Supreme Court, said Khalid Anwar and added that under Article 175 of the Constitution, the Supreme Court’s jurisdiction is what is defined in the Constitution and is not beyond that or is not unlimited.
He said that it is out of the question that any citizen would challenge any Constitutional Article or Constitutional Amendment before the American Supreme Court.
Asked if parliament passes a constitutional amendment with two-thirds majority declaring that the senior-most army general would be the deputy prime minister, would the Supreme Court accept such an amendment, he said that it was a ridiculous question. “If parliament would give such powers to the army, it will be madness and will only mean that all parliamentarians have gone mad.” Khalid Anwar said adding “My point is if some 450 parliamentarians could do such a thing, it could also be expected from relatively lesser number of judges.”
Khalid said that in a democratic society, the final authority stays with the representatives of millions of people and say of the people is always final. “If we claim to be a democratic society, we will have to honour the judgment of the representatives of the people,” Khalid Anwar said.
Abid Hasan Minto was of the view that it is time for Pakistan’s apex judiciary to decide the question whether it will examine the constitutionality of any Constitutional Amendment on the basis of its concurrence with the overall scheme, totality and spirit of the Constitution. In the past, the apex court avoided doing so. Minto said if parliament amends the Constitution, giving powers to some institution like the army that its senior-most official will be the deputy prime minister, it will be completely against the basic spirit and the overall scheme of the Constitution and in any such situation the Supreme Court will have to lay down the principle to examine the concurrence of constitutional amendments with basic spirit of the basic book.
Justice Wajihuddin Ahmad told The News that on many occasions in the past, the apex court has elaborated and interpreted articles of the Constitution in such detail that original article became irrelevant. Wajih said that because of this, the superior judiciary could not only interpret any amendment to the Constitution in the light with the basic spirit of the Constitution but could also strike down any Constitutional Amendment if it found it in contradiction with the basic structure and basic principles of the Constitution.