BASIC STRUCTURE
The basic structure doctrine, discussed in various places throughout this book, was first forged by judges of the Indian Supreme Court to review constitutional amendments. There is a specific higher law and higher morality basis to the basic structure doctrine, as it provides that the constitutional dispensation must, in all cases, maintain fidelity to a set of transcendental principles.
In the Indian case, these were originally elaborated as parliamentary democracy, federalism, independence of the judiciary and minority rights, although the list has grown further. Employment of the basic structure doctrine enables the judiciary to act as the guarantor of these principles and strike down a constitutional amendment, even where validly passed by a legislature, if it derogates from or impinges upon the realisation of these principles.[371]Through Chief Justice Chaudhry’s tenure, and earlier, several cases arose in which the basic structure doctrine could have provided an easy fix for constitutional deviations engineered by Musharraf. In spite of the court repeatedly hearing petitions that employed the doctrine to challenge such deviations, the court did not affirm basic structure as valid law in Pakistan. In a way this was simply in keeping with precedent; while insufficient for challenging a constitutional amendment, it was used in some fashion nonetheless to elaborate a set of proscriptive guidelines on the kinds of amendment that could be framed by a non-elected government, such as in the Zafar Ali Shah case.[372] However, given how far the Chaudhry court had veered from past practice in many ways, this cannot serve as a full explanation of why the basic structure doctrine was resisted for the most part.
A more roundabout explanation might be had in seeking greater clarity about the aims pursued by Chaudhry and allies on his bench including Jawad Khwaja, who himself was Chief Justice for a short period in mid-2015.
A recent volume dedicated to excavating these aims and the patterns established during Chaudhry’s reign as Chief Justice begins with a foreword by Justice Khwaja, in which he rejects the need to rely upon doctrines from other jurisdictions.[373] He goes on to acknowledge his own transformation into a more publically- minded judge as a consequence of the power available to the Supreme Court to redress broad-scale social and governance problems. In other words, there was no shame in being described as a political court and in fact, the court was self-aware in cultivating a constituency amongst a broader public that was dissatisfied with the performance of its government.However, as the various contributors in the volume go on to illustrate, a political orientation for the court necessitated the need to appease other actors, including a legal community with an entrenched conservative and formalist outlook. Rather than seek a ‘law of laws’ to regulate governmental conduct, the court sought to efface the distinction between the constitution and constitutional interpretation.[374] In its most important political decisions the court shows a strict fidelity to finding guidance and coherence from within the ‘four corners’ of the constitutional text rather than through an invocation of higher level principles.[375] Where a bench including Chaudhry would utilise the opaquely interpretive basic structure doctrine was in seeking parliamentary reconsideration of the judicial appointments structured through the Eighteenth Amendment as described in the following section.
In early 2015, sometime after Chaudhry had retired from his seat, a major reversal in the highest courts’ posture towards the basic structure doctrine was authored. In what is generally known as the Twenty-first Amendment case a majority of the Supreme Court’s full bench affirmed the right to strike down a constitutional amendment, even where validly passed by an Assembly, if found to be contrary to the basic and salient features of the 1973 Constitution.
At issue, the case was the authorisation for trial of suspected terrorists through the mechanism of military court martials as provided firstly through an amendment to the Army Act of 1952. It is believed the ‘deep state’, the army, in various ways strong-armed the democratic Parliament to provide fuller protection by incorporation into the Constitution, although subject to elapse at the end of two years.While the ‘basic features’ cited as worthy of protection vary amongst the judges who rely upon the basic structure doctrine, one criteria that is uniformly upheld is that judicial power can only be exercised by the judiciary, not the army. Notably, Khwaja, who was a member of the full bench on the Twenty-first Amendment case[376] authored a note which provided courts with the power to strike down a constitutional amendment but not in reliance upon the basic structure doctrine. Again, it was through a close reading of the Preamble combined with a reading down of constitutional provisions that had been enshrined by dictators that this was accomplished by Khwaja.
Ultimately though, the affirmation of the basic structure doctrine was not sufficient in itself to sway the majority of the members to declare the Twenty-first Amendment ultra vires. This majority voted that the particular provisions of the amendment were insufficiently violative of rights guarantees to be invalidated. In their reasons these judges found the measures to meet a proportionality test given the ‘scourge of terrorism’ in the country and the emergency character of the amendment. Those opposed to these military courts cited the absence of due process and the existing anti-terror courts as the correct forum. The effective impact of the judgment is that the court established itself as a proper forum of appeal, albeit on limited grounds, for convictions arising from military judgments.
VII.