A.G. Noorani, political analyst, advocate of the Supreme Court of India, writes for this newspaper. His column of July 3 dealt with the doctrine of the ‘basic structure of a constitution’ and how this cannot be changed by amendments. It was relevant to our constitution and the present matter in the Supreme Court of Pakistan dealing with the issue of the 18th Amendment to the 1973 constitution, during the hearings of which our learned justices referred to its ‘basic structure’ but did not define it.
To some, the basic structure is embodied in the fundamental rights guaranteed by a constitution, to others it is the form of government — parliamentary or presidential. What was the basic structure of the 1973 constitution when it was promulgated?
Well, if it was the fundamental rights (Articles 8 to 28), then the basic structure was changed within four hours of its promulgation on Aug 14, 1973 when a presidential order declared that the state of emergency imposed in 1971 would continue for an unspecified period and that 10 of the guaranteed fundamental rights stood non-justiciable, i.e. suspended. So decreed Zulfikar Ali Bhutto, maker and promulgator, and his president had no qualms in signing the order. (Fundamental rights were twice suspended subsequently, by Ziaul Haq and Pervez Musharraf.)
Bhutto brought in seven amendments, three concerned with ‘fixing’ the judiciary to his liking, two with furthering the cause of preventative detention, and one transforming a community of the majority into a minority, i.e. shaving it of its rights.
From this we must assume that our ‘basic structure’ is not fundamental rights. So what is it? Well, come 1985 and Ziaul Haq brought in his Eighth Amendment which totally changed the form of government from parliamentary to quasi presidential, and introduced into the constitution matters of religion — his own unique brand of religion — which impinged on 59 articles and sub-articles of the constitution, thus debasing its tenor and spirit.
He made the Objectives Resolution an annex to and substantive part of the constitution, thus further betraying the desire and objective of the founder-maker of the country, Mohammad Ali Jinnah, who had unequivocally instructed his constituent assembly that “You may belong to any religion, or caste, or creed — that has nothing to do with the business of the state.”
Would one not say that any basic structure was thus completely undone?
Now, this present government, with much trumpeting, has introduced the 18th Amendment which it declares falsely has ‘restored’ the original 1973 constitution. One must ask the legislators, and also our honourable Supreme Court justices, how this has possibly been achieved when the constitution remains littered with the religious aspects of the Eighth Amendment? Is parliament not misleading the nation, is it not collectively conniving in an untruth?
In his column, Mr Noorani told us that the author of ‘the basic structure’ doctrine was Prof Dietrich Conrad who headed the law department of the South Asia Institute of the University of Heidelberg from its founding in 1963 to his retirement in 1997 (he died in 2001). According to Mr Noorani, he “single-handedly inspired a revolution in constitutional law,” namely the ‘basic structure’ limitation on powers to amend constitutions.
Indian lawyers took note of the doctrine in 1965 and it was laid down by the Supreme Court in the Kesavananda Bharati case in 1973. Courts in Pakistan have wavered in their position on the question and fallen shy of expressing an opinion (can someone tell me otherwise?). According to Conrad “there are, beyond the wording of particular provisions, systematic principles underlying and connecting the provisions of the constitution ... [which] give coherence to the constitution and make it an organic whole.”
As to the 1973 constitution, or more precisely the 1985 constitution which is what we toil under today, what is it that gives it coherence and makes it an organic whole? Can any man answer this? Abdul Hafeez Pirzada can certainly answer on behalf of what was the 1973 constitution, and my old friend, the Jadoogar of Jeddah, Sharifuddin Pirzada, could undoubtedly enlighten us on the 1985 version. We need them to speak up. The cause of anxiety about the 18th Amendment is clear — it is how it affects our judiciary.Whilst Conrad was examining the emergency provisions of the Indian constitution and their use he correctly asserted that emergency powers were never intended to be used to improve the economy of a country. Provisions for the imposition of a state of emergency, in any part of a country, were unsound and its use would lead to the generation of a feeling of alienation among the people of that part of the country.
On the concept of the rule of law, Conrad had it that this could not be attained unless the judicial machinery was reformed to provide expeditious and effective remedies against the violation of laws. He also stressed that the right to basic necessities of life be judicially enforced, and that the existence of different personal laws be re-examined in the light of the right to equality under the constitution.
The 18th Amendment has not only irritated the judicial appointments issue, it has also done little to ensure the right to equality for the country’s citizens.
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