Constitutional basic structure: From India to Islam

Even before India's Supreme Court clarified its notion of constitutional “basic structure” in 1973, debates regarding the relative power of parliament and the courts, vis-a-vis constitutional amendments, were travelling back and forth between India and Pakistan.

Within India's Constituent Assembly (1947-9), the dawn of these debates can be found in efforts to abandon British notions of unfettered parliamentary sovereignty in favour of a broadly American commitment to enumerated and enforceable rights. These efforts prompted numerous questions about the degree to which parliament's power of constitutional amendment, enshrined in Article 368 of India's Constitution, might extend to amending or abrogating basic rights

- and, then, how India's Supreme Court might respond to any such manoeuvre. In fact, India's first constitutional amendment, seeking to protect government land reforms from any form of judicial review based on claims of inconsistency with a fundamental right to property, was reviewed - and subsequently upheld

- in a Supreme Court case known as Shankari Prasad v Union of India (1951).^[408]

A later case known as I.C. Golak Nath v State of Punjab (1967), however, offered a different view.^[409] In this case, the Supreme Court cited a Pakistan Supreme Court case known as Fazlul Quader Chowdhry v Muhammad Abdul Haque (1963), which considered the “essential features” and “basic structure” of Pakistan's constitution.^[410] Specifically, I.C. Golak Nath held that, henceforth, even duly promulgated constitutional amendments could not “take away” or “abridge” the essential features of India's constitution, including fundamental rights.

India's parliament, however, did not embrace the Court's decision in I.C. Golak Nath. In fact, India's parliament promulgated the Twenty-Fourth Amendment (1971) asserting that parliament's amending power was not lim­ited by any articulation of fundamental rights.

any amendment that might appear to “abrogate” whatever the Court chose to define as the (implied) basic structure of India's constitution, including (a) feder­alism, (b) a parliamentary form of government, (c) fundamental rights (including a “secular” approach to religion-state relations), and (d) judicial independence.

A similar debate emerged in Pakistan, but this time India's focus on funda­mental rights was set aside in favour of a debate regarding the Supreme Court's power - possibly in conjunction with an associated “Mulla Board” - to review parliamentary actions for their compliance with Islamic injunctions.^[412] In fact, one member of Pakistan's first Constituent Assembly (1947-54), Abdulla al- Mahmood, criticised the Indian Supreme Court decision in Shankari Prasad (1951) for its claim to provide parliament with unfettered powers of constitu­tional amendment. Al-Mahmood argued that, in Pakistan, the Federal Court (later, Supreme Court) must be empowered to review even duly promulgated constitutional provisions to ensure they were not “repugnant” to the injunctions of the Qur'an and sunnah (i.e. prophetic tradition).^[413]

In Pakistan, this link between notions of constitutional basic structure and “Islam” is often associated with a feature of the constitution known as the Objectives Resolution. Approved by Pakistan's first Constituent Assembly in 1949, then preserved as a preamble in Pakistan's first (1956), second (1962),^[414] and third (1973) constitutions, this Resolution was recast as a substantive arti­cle (Article 2A) via Pakistan's Eighth Amendment under General Zia-ul-Haq in 1985.

Even apart from this Objectives Resolution, however, Pakistan's Constitution contains several references linking parliamentary authority to Islam. Its list of non- justiciable “Principles of Policy” notes that “steps shall be taken to enable.. Muslims. to order their lives in accordance with the fundamental principles. of Islam” (1956 “Directive Principles”: Article 25; 1962 “Principles of Policy”: Article 8(1)(1); 1973: Article 31). A further portion entitled “Islamic Provisions” states that legislation considered “repugnant” to the injunctions of Islam will be barred - although, having said this, a strictly advisory Council of Islamic Ideology was established by the President to support the country's National and Provincial Assemblies with compliance (1956: Article 198; 1962: Article 204; 1973:

Parliamentary piety in Pakistan 115 Articles 227-30). Pakistan’s president and prime minister are, in turn, constrained by a series of oaths ensuring that they must be “Muslims” (1956: Article 32; 1962: Article 19; 1973: Article 41) - indeed, after 1973, when Islam was finally specified as Pakistan’s state religion (Article 2), that neither the president nor the prime minister would belong to a heterodox minority known as the Ahmadiyya.^[415] In 1985, the terms of Article 62 were also adjusted via Pakistan’s Eighth Amendment to stipulate that Muslim parliamentarians must have “adequate knowledge of Islamic teachings” and “practice [the] obligatory duties prescribed by Islam” while “abstaining] from major sins” (Article 62(1)(e)) - indeed, that any parliamentarian facing a court judgment regarding dishonesty would stand disqualified for failing to meet the required standard of being “ameen” (Article 62(1)(f)).

The Eighth Amendment also moved beyond parliamentary to judicial power, supplementing the advisory work of Pakistan’s Council of Islamic Ideology with binding powers for a new Federal Shariat Court and a “Shariat Appellate Bench” of the Supreme Court (Article 203D/E). Both courts were empowered to decide whether any law - apart from Muslim personal laws, various fiscal and financial laws, and, crucially, the constitution itself - might be deemed “repugnant” to Islam, rendering such laws ineffective until an alternative could be framed by Pakistan’s elected representatives on the orders of the president or, in the case of provincial laws, the president’s appointed governor.

Again, Abdulla al-Mahmood urged Pakistan’s first Constituent Assembly to ensure that Pakistan’s highest court was empowered to test for Islamic repug­nancy up to and including the Constitution itself. But, when Pakistan’s first con­stitution emerged in 1956, this view was set aside. Instead, recalling the views articulated by the Indian Supreme Court in Shankari Prasad (1951), Pakistan’s first Constitution stipulated that any amendment duly promulgated by parlia­ment would “not be questioned in any court” (Article 216).^[416]

This clause regarding unfettered parliamentary powers of constitutional amendment was removed in Pakistan’s second and third constitutions (1962: Articles 208-9; 1973: Articles 238-9). But, in 1985, Pakistan’s Eighth Amendment imported two provisions directly from India’s constitution to restore and strengthen it. Article 239(5) - in India, Article 368(4) - specified

that “no amendment of the Constitution shall be called in[to] question by any court.” Article 239(6) - in India, Article 368(5) - noted that, “for the removal of doubt.. there is no limitation whatever on the power of.. parliament to amend any of the provisions of the Constitution.”^[417] It is worth noting that India's Forty-Second Amendment (1976), which introduced these two provisions, was struck down by the Indian Supreme Court in a case known as Minerva Mills Ltd v Union of India (1980).^[418] Specifically, Minerva Mills read these provisions as a violation of “judicial independence” (and, thus, a violation of India's constitu­tional “basic structure”).

In Pakistan, however, these two provisions prompted a number of questions regarding the degree to which parliament's “unlimited” powers of constitutional amendment might extend to Islamic provisions. These questions are particularly interesting insofar as (a) parliamentary considerations of Islamic repugnancy are not bound by the advice of Pakistan's Council of Islamic Ideology and (b) the binding power of Pakistan's Federal Shariat Court does not extend to an assess­ment of constitutional provisions. As such, parliament's power to shape and reshape ostensibly “Islamic” constitutional provisions would appear to remain quite unlimited, both with respect to the Council of Islamic Ideology and with respect to Pakistan's Federal Shariat Court. In fact, even after the 1962 removal of Article 216 (amendments will “not be questioned in any court”), but before the 1985 introduction of Article 239(6) (there is “no limitation” whatsoever on parliament's amending power) - Pakistan's Supreme Court continued to respect parliament's power to shape Pakistan's Constitution, including its Islamic provisions.^[419]

In the Lahore High Court case of Zta-ur-Rahman v The State (1972), for instance, followed by a Supreme Court appeal known as The State v Zia-ur- Rahman (1973), the courts considered whether parliament was empowered to introduce changes in Pakistan's third Constitution (1973) that might be described as “repugnant to Islam.”^[420] In this context, Justice Afzal Zullah of the Lahore High Court focused on Pakistan's Objectives Resolution, describing it as a “supra-constitutional instrument” that was “so fundamental” it “[could] not...

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be repealed or abrogated.”^[421] But, on appeal, the Supreme Court Chief Justice, Hamood-ur-Rahman, held that, while the Objectives Resolution could be said to provide some type of constitutional grundnorm, it was still just a constitutional preamble.

This deference to parliamentary power vis-a-vis constitutional amendments, including amendments pertaining to Islam, was further reiterated in cases like Islamic Republic of Pakistan v Abdul Wali Khan (1976) (“this court [remains] committed to the view that ‘the judiciary cannot declare any [constitutional] pro­vision... to be invalid or repugnant'”) as well as Fauji Foundation v Shamimur Rehman (1983) (parliament's “amending power, unless it is restricted, can amend, vary, modify or repeal any provision of the Constitution”).^[423] It also appeared in cases like Federation of Pakistan v United Sugar Mills (1977), which reviewed Pakistan's Fourth Amendment (regarding, inter alia, reserved parlia­mentary seats for non-Muslims) before accepting it precisely insofar as it was duly promulgated by parliament.^[424] In fact, until the Supreme Court's preliminary short order reviewing Pakistan's Eighteenth Amendment in Nadeem Ahmed (2010) and, then, its final decision in District Bar Association Rawalpindi (2015), the Supreme Court consistently deferred to parliament's amending power.

Even in District Bar Association Rawalpindi (2015), the Court's majority did not strike down any amendment duly promulgated by parliament. Instead, the majority simply indicated that, henceforth, such amendments could and should be struck down if, in the eyes of the Court, they were found to alter the constitu­tion's essential features or abrogate its basic structure, including its “parliamen­tary form of government blended with Islamic provisions.”

6.3