Eesha Arshad Khan

20090027

Sir Justice Fazal Karim

Constitutional and Administrative Law

December 7, 2017

“Just as war is too important to be left to Generals, so is the Constitution too important to be
left to the Judges!”
Please read the Basic Structure majority judgements (PLD 2015 SC 401) of Justice Azmat
Saeed Sheikh and Justice Jawwad S. Khawaja and the minority Judgements of Justice
Saqib Nisar, Justice Asif Saeed Khosa and Chief Justice Nasir ul Mulk.
Do you agree that the courts have power to determine the constitutionality of
Constitutional Amendments on the doctrine of “Basic Structure?

The essay analyses the constitutionality of the Twenty First Amendment (hereinafter

the “21st Amendment”) to the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter

the “Constitution”), through the Constitution (21st Amendment) Act, 2015 (hereinafter the

“Amendment Act”), on the touch stone of existence of basic structure in the Constitution, as

has been established by the superior Courts. This 21st Amendment was passed in the aftermath

of 16th December, 2014's tragic incident of terrorist attack on Army Public School, Peshawar,

which left 141 dead, including a majority of children and other staff members. As a result, in

order to console the grieving nation, and to wipe the tears of every mother who had lost their

children in this unfortunate attack, the Government of Pakistan, in collaboration with the army,

decided to eradicate terrorism from the country. For this purpose, the government decided to

legislate military Courts, the operation of which would, 'inherently', be protected from any

violation of the fundamental rights, as enshrined in the Constitution, as a result of the said

Amendment.
 INTRODUCTION

The basic aim of passing the said amendment was to give constitutional cover to the

establishment and operation of the military Courts, with the aim to convict the terrorists who

have been acquitted either for non-availability of evidence, or due to inability of prosecution

to prove their offences beyond reasonable doubt. The preamble to the said Amendment Act

outlines and states that, to cater to the existing extraordinary circumstances of “grave and

unprecedented threat to the integrity of Pakistan”, special measures are required to be taken for

speedy trial of the offences relating to terrorism and waging of war against Pakistan. As a

result, under the garb of this constitutional cover, 'military Courts' were established to conduct

the trial of select few cases relating to terrorism.

Originally, in the Constitution, there are three 'constitutional' Courts established (under

Article 1751, which include the Supreme Court of the country, High Courts for all the four

provinces, and a High Court for Islamabad Capital Territory, and the Federal Shariat Court

under Article 203 C2, whose jurisdiction and powers have been given in the Constitution itself,

With the passing of 21st Amendment (along with the subsequent amendment in Pakistan Army

Act, 1952), a special Court was created for the trial of terrorists belonging to certain

organizations. It was argued that, by constituting this special Court, through a proviso to Article

175 of the Constitution, the legislature had curtailed the power of other Courts. As a second

fold of the said 21st Amendment, certain other secondary legislations had been protected from

the applicability of prohibitory clause of Article 8 of the Constitution3. Pursuant to the passing

of the 21st Amendment, it was challenged before the Supreme Court of Pakistan in the case of

District Bar Association Rawalpindi v The Federation of Pakistan. In the split decision,

Justice Azmat Saeed held in favor of the basic structure doctrine. He looked into the history of

1
Constitution of Islamic Republic of Pakistan 1973, Art. 175.
2
Ibid, Art. 203 C.
3
(n 1), Art. 8.
Basic Structure doctrine in India and Pakistan, and determined that the Constitution of Pakistan

had Salient Features, which could not be altered, abrogated or destroyed through an

Amendment made by the Parliament and that the Court was vested with the jurisdiction to

examine the vires of such Amendment on this account.

BASIC STRUCTURE DOCTRINE

Brief Introduction of the Doctrine:

The idea behind this constitutional doctrine of basic structure is that there are certain

features of the 'fundamental law' of the land, which cannot be amended by the actions of the

legislative. In this regard, there are legislative instruments, as well as judicial pronouncements

supporting this very idea of existence of basic structure. Historically, the legislative origin, of

this doctrine, is the Basic Law of Federal Republic of Germany, 1949.4 On the other hand, the

judicial origin is the jurisprudence established by the Indian Superior Courts. It was Prof

Dietrich Conrad, head of the law department at the South Asia Institute of the University of

Heidelberg, and the author of the doctrine that “the basic structure” of a constitution cannot be

changed, who enlightened the Indian Lawyers about the idea of Basic Structure of a

constitution, that made an essential part of Indian jurisprudence. The Courts of India have, time

and again, decided on the issue whether the amending power of Parliament is absolute of not,

and right now, following is the position of this doctrine in the jurisprudence of India.

Position in India

In India, there are two main cases on the issue where the question of amending power

of the parliament (Article 368), under the Constitution of India, 1949 (hereinafter the “Indian

Constitution”) was discussed and decided upon. In this regard, first case is I.C. Golak Nath Vs.

4
Basic Law for the Federal Republic of Germany, Art. 1.
State of Punjab5, the 1967 judgment on the question of amending power of the Parliament of

India, where it was held that the Parliament cannot amend the fundamental rights' part of the

Indian Constitution in a way that it curtails the ambit of these fundamental rights. The two

issues, discussed in the case of Golak Nath were that whether the act of Parliament, amending

the Indian Constitution, fell in the definition of 'Law' as provided in Article 13(2) of the Indian

Constitution, and whether the amending power of parliament extended to amending the

fundamental rights as well? 6

To the first issue, the Court held that the any amendment to the Indian Constitution

must be deemed 'law' as understood in Article 13 (2)7. For the second issues, majority of the

judges in Supreme Court of India ruled in the favor of limited amending power of the

parliament. However, in the latter case of Kesavananda Bharati Vs. State of Kerala8, the

Supreme Court of India recognized the Indian Parliament's right to amend the Indian

Constitution, and restricted this amending power to the extent that it would not take away the

basic structure of the Indian Constitution. In Kesavananda's case9, it was held that what can be

constituted as the 'basic structure', includes, inter alia, the status of basic land of law, the

religious/secular character of the Constitution, the form of Government, and the character of

the Constitution. According to Lord Birkcnhead, L.C., this basic structure of the Constitution

is based on the foundation that is enshrined in the constitutional freedoms. In the said case, the

six judges, led by Chief Justice, had mentioned specific provisions which may not be abrogated

by the exercise of power under Article 368 of the Indian Constitution. However, these six

judges who held that the 'essential elements' or the 'basic features' of Constitution cannot be

5
AIR 1967 SC 1643
6
Ruchita T. Jain and Kirti S. Soni. “Legal Service India” published on 21st January, 2010,
http://www.logalserviceindia.com/article/l426L. C. GolaknathV. StateOfPunjab.html
7
Venkatesh Nayak. “The Basic Structure of the Indian Constitution”. Available at <http://www.hu
manrightsinitiative.org/publications/const/the_basic_structurc_of_the_ indian_constitutoin.pdf>
8
AIR 1973 SC 1461
9
Ibid.
abrogated did not give a definitive list of these basic features.

Position in Pakistan:

The debate as to what constitutes Basic Structure of the Constitution has always been a

topic under discussion among the legal fraternity in Pakistan. There have been litigation on this

issue, however, no concrete decision has been laid down by our superior Courts. This question

had never been decided by the Courts, and was brought forth with the case of 21st Amendment.

It is imperative to note that the judges are always inclined towards negative, when there comes

the debate of existence of basic structure in the Constitution, more than they positively favored

it. In this regard, it is pertinent to discuss the important cases, where the Supreme Court of

Pakistan has vaguely decided the issue of basis structure of Pakistani Constitution, as well as

the cases in which Supreme Court has decided upon the question of Court's power to strike

down a legislative amendment. The terms 'nature' of the constitution, and 'basic provisions' had

first been coined in the case of Fazlul Quader Chowdhry Vs. Muhammad Abdul Haque10 where

the Court while deciding the scope of Article 224 of the 1962 Constitution, held that the “aspect

of the franchise, and of the form of the Government are fundamental features of a Constitution”

and therefore “the Constitution was not intended to be varied according to the wishes of any

person or persons”.11 In State Vs. Zia ur Rehman12, the Court held that the judiciary, in exercise

of its judicial power, could not strike down a provision of the Constitution. Since, the Supreme

Court itself was the creature of the Constitution, it could neither claim, nor had the right to

strike down the provision of the Constitution. In the case of Islamic Republic of Pakistan Vs.

Abdul Wali Khan13, Justice Hamood ur Rehman, while quoting his own decision in the case of

10
PLD 1963 SC 486.
11
PLD 1963 SC 486, 511.
12
PLD 1973 SC 49.
13
PLD 1976 SC 57.
Province of East Pakistan Vs. Siraj ul Haq Patwari14 said that “the Court should lean in favor

of upholding the constitutionality of a legislation and it is, therefore, incumbent upon Courts

to be extremely reluctant to strike down laws an unconstitutional”. Furthermore, while avoiding

getting into the discussion of whether the fundamental rights can be abrogated through a

constitutional amendment, said that the issue before this Court is to decide that whether the

Court can strike down any provision for being violative or repugnant. To this question, their

answer was negative.

While deciding the case of Federation of Pakistan Vs. United Sugar Mills15, the Court

vehemently denied the power of Supreme Court to set aside a constitutional amendment, by

relying upon the case of Zia ur Rehman16, that, in Pakistan “...a constitutional provision cannot

be challenged on the ground of being repugnant to what are sometimes stated as “national

inspirations” or an “abstract concept” so long as the provision is passed by the competent

Legislature in accordance with the procedure laid down by the Constitution...” In Al-Jehad

Trust Vs. Federation of Pakistan17, the Court, instead of adopting the basic structure doctrine,

pressed in to service the rule of interpretation that if there is a conflict, the provision which

contains lesser rights will yield in favor of the provision which contains higher right.

In Mahmood Khan Achakzai Vs. Federation of Pakistan18, it was held that the

“…freedom bestowed upon the parliament in clause (6) of Article 239 after amendment does

not include power to amend those provisions of the Constitution by which would be altered

salient features of the Constitution, namely federalism, Parliamentary form of government

blended with Islamic Provisions”. The Court finally decided that “[i]t is open to the Parliament

to make amendment to the Constitution of any provision of the Eighth Amendment as

14
PLD 1966 SC 854.
15
PLD 1977 SC 397.
16
PLD 1973 SC 49.
17
PLD 1996 SC 324.
18
PLD 1997 SC 426.
contemplated under Article 239 as long as basic characteristics of federalism, parliamentary

democracy and Islamic provisions as envisaged in the Objective Resolution/ Preamble of the

Constitution of 1973 which now stands as substantive part of the Constitution in the shape of

2A are not touched.” While rejecting the basic structure theory, it was held that “[i]t can, thus,

be said that in Pakistan there is a consistent view from the very beginning that a provision of

the Constitution cannot be struck down holding that it is violative of any prominent feature,

characteristic or structure of the Constitution. The theory of basic structure had thus completely

been rejected.

In Wukula Mahaz Barai Tahafaz Dastoor Vs. Federation of Pakistan19 the Court held

that an impugned Constitutional amendment which tends to destroy any of the basic features

of the Constitution without which the State could not have been run as was originally mandated

by the framers of the Constitution cannot be upheld as it destroy the basic feature of the

Constitution. However, the Court held that what are the basic essential features of the

Constitution of Pakistan is yet to be answered with clarity. The Court quoted three basic

features of the Constitution, as narrated by the counsel for Petitioners; “representative form of

Government, Islamic concept of democracy and independence of judiciary.” The Court held

that the concept has remained alien to the Courts of our country, and has not been consistently

applied in Pakistan.

In Syed Zafar Ali Shah Vs. Federation of Pakistan20, it was held that the basic features

of the Constitution, i.e., independence of judiciary, federalism and parliamentary form of

government blended with Islamic Provisions, could not be altered even by the Parliament.

While deciding upon the coup of Musharraf, the Court held that he could amend the

Constitution, but he could not alter the basic structure of the Constitution, which included the

19
PLD 1998 SC 1263.
20
PLD 2000 SC 869.
abovementioned features.

In 2005, in the case of Pakistan Lawyer's Forum Vs. Federation of Pakistan,21 the

Supreme Court while deciding the constitutionality of 17th Amendment to the Constitution,

decided that the Basic Structure Doctrine is acknowledged to be in existence in the

Constitution, however, there are limitations on the power of Parliament to make amendments.

It was held that by the judiciary but by the body politics of the country, Furthermore, it was

observed that this Court can only set aside a constitutional amendment if it is not passed in

accordance with the procedure of passing an amendment as laid down in the Constitution.

Thus, in the context of Pakistan, as opposed to Indian jurisprudence, the issue pertaining

to the basic structure of the constitutions has been only elusively discussed by the legal

fraternity. Until recently, jurisprudential history of Pakistan, with respect to the doctrine of

basic structure, was brimming with ambiguity and vague references to some abstract notion of

the basic structure of the constitutions. However, the judgment of Supreme Court, District Bar

Association Rawalpindi vs. Federation of Pakistan,22 concerning constitutionality of 18th and

21st amendment, is perhaps the most significant in this regard.

21st AMENDMENT TO THE CONSTITUTION

The 21st Amendment to the Constitution was passed through an Amendment Act, on

06th January, 2015 to remain as a part of the Constitution for a period of two years. It is

imperative to discuss the certain parts of the Amendment Act. The preamble stated that

'extraordinary situation and circumstances' exists which have put the country in crisis. In sum,

this proviso has created a judicial system, which would work “in aid of” the Supreme Court of

Pakistan, as has been required by Article 190 of the Constitution.

21
PLD 2005 SC 719.
22
PLD 2015 SC 401.
 THE CASE OF DISTRICT BAR ASSOCIATION v. THE FEDERATION OF

PAKISTAN

The Supreme Court of Pakistan, by an overwhelming majority of 13 out of 17 judges,

held that it had intrinsic powers to review the constitutionality of a constitutional amendment

passed by the Parliament. While the 902-page judgment has been hailed as an ostensibly

favorable instance of the current trend of Asian nations to uphold the Basic Structure Doctrine.

In the decision, the petitions challenging the 18th Amendment (laying down a new

procedure of judicial appointments) and 21st Amendment (setting up a series of military courts

to try cases involving terrorism) to the Constitution were heard together as they involved a

common constitutional question as to whether there are any limitations on the powers of the

Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike

down a constitutional amendment. The Court, by aforementioned majority, answered both

questions in the affirmative, saying that Article 239(5)23 and Art. 239(6)24 still left room for

judicial review of constitutional amendments.

The majority verdict asserted that, from State v. Zia Ur Rahman to Nadeem Ahmed v.

Federation of Pakistan, the Court has consistently held that the BSD has been

recognized only to the extent of identifying salient or fundamental features of the Constitution.

On the other hand, Chief Justice Nasir-ul-Mulk’s opined that the foundations of arguments for

Basic Structure Doctrine in Pakistan are shaky.25 Quoting a stray remark from Mahmood Khan

Achakzai v. Federation of Pakistan, a rhetorical unanswered question in Wukala Mahaz v.

23
“no amendment of the Constitution shall be called in question in any court on any ground whatsoever”,
Constitution of Islamic Republic of Pakistan, Art. 239(5).
24
“for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Parliament
to amend any of the provisions of the Constitution”, Constitution of Islamic Republic of Pakistan, Art. 239(6).
25
District Bar Association (Rawalpindi) v. Federation of Pakistan, PLD 2015 SC 401.
Federation of Pakistan and a restriction imposed by the SC on military dictator Pervez

Musharraf, in Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan, he declared that

nowhere has such a basic structure as commonly understood in India to be left deliberately

vague and undefined, been recognized by the Court.

The Chief Justice, along with Justice Rahman, argued that the difference in politico-

judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a

foreign jurisdiction like India, cannot be similarly applied “unthinkingly” to Pakistan, and that

the debate with respect to the substantive vires of an amendment to the Constitution is

a political question to be determined by appropriate political forums (e.g. parliamentary

democracy), not by the judiciary.26 Justice Nisar, concurring, made a passing remark that the

earlier trend of passing draconian amendments had generally ceased and therefore, unlike their

Indian counterparts, recent constitutional amendments in Pakistan generally have a

unique beneficial intent and effect.27 This argument appears to attribute the very ‘heroism’ to

elected representatives, which he denounced in case of the Judiciary, and seems optimistic in

its assumption that the Parliament would not relapse into such tyranny.

Justice Khawaja argued that, on an organic reading of the Constitution, the Parliament’s

power to amend the Constitution is constrained by limitations which are both political and

subject to judicial review, that the expression “amendment” (ordinarily implying correction

and improvement) does not extend to abrogation or destruction and, therefore the Court has the

power to strike down a Constitutional amendment which transgresses these limits.28 He

affirmed that the Preamble, on account of its clarity in issuing nine People’s directives, is

unlike the hopelessly vague Indian Constitution’s Preamble, and therefore judges in Pakistan

need not rely on individual proclivities to circumscribe powers of State organs, like Indian

26
Ibid, 471.
27
Ibid, 535-536.
28
Ibid, 490.
judges do.29 The dispensation of representatives’ fiduciary obligations in Pakistan would thus

be reviewable by the Judiciary, through the mechanisms provided by the Constitution itself–

the un-amendable Salient Features embodied by the Objectives Resolution 1949, and not

through resort to to extra-constitutional material.

However, even the Salient Features Doctrine (‘SFD’) as recognized by Khawaja,

differs from the SFD recognized by the 8 judges in concurrence with Justice Azmat Saeed-

while the former rooted them in the Preamble, the latter said that the SC “is vested with the

jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient

Features”.30 While they did not provide an exhaustive list, the 8 judges expressly recognized

that Democracy, Parliamentary Form of Government and Independence of Judiciary “are

certainly included in the Prominent Characteristics, forming the Salient Features”.31 Thus the

13 judges who approved the SFD themselves did not articulate a unanimous theory of what the

SFD precisely entails, and whether the prominent features of the Constitution or judicial

discretion would reign supreme while interpreting Salient Features, which may lead to

potentially very different implications.

Justice Khosa posited that acceptance of any one of the basic features as a touchstone

or a test of repugnancy or contrariety qua the other provisions of the Constitution would render

the entire Constitution vulnerable to challenge in courts of law.32 This would inevitably call for

value judgment by the courts instead of allowing the people deciding as to what is good for

them, which “would bring serious damage and destruction, if not doom,” to the present

constitutional system in Pakistan.33 Further, Justice Nisar asserted that the opening words of

the resolution “…the will of the people of Pakistan to establish an order -Wherein the State

29
Ibid, 532-533.
30
Ibid, 772.
31
Ibid, 633.
32
Ibid, 986.
33
Ibid, 878.
shall exercise its powers and authority through the chosen representatives of the people”

succinctly delineates sovereignty and authority in the body of elected representatives, not

judges”.34 Thus widely different strands of interpretation of Pakistan’s constitutional history

and epistemology are observed in the judgment.

ANALYSIS

The Basic Structure Doctrine finds no textual basis in the constitutions of either

Pakistan or India. It is entirely the creation of the judiciary. Justice Aharon Barak of the

Supreme Court of Israel has justified the ‘unconstitutional constitutional amendments’ doctrine

as being little different from judicial review of ordinary legislation.35 This essay disagrees with

this view as applied to the basic structure doctrine. The counter-majoritarian argument against

judicial review of legislation is well known. Yet, in most jurisdictions that have established

Constitutional Courts, the constitution itself grants the power of judicial review. Thus it can be

seen as a deliberately counter-majoritarian device, i.e., as a constitution-based constraint upon

the majority rule exercised by parliament.36 The people who ratified the constitution approved

of judicial review, and that takes much of the sting away from such arguments.37 But the basic

structure doctrine cannot look to the text of the constitution to support itself. Any power to

declare a constitutional amendment void is glaring in its absence in the text of the constitutions

of Pakistan and India.

Thus, the basic structure doctrine is not a “deliberately counter-majoritarian device,”38

in the same way that judicial review of legislation may be. It lacks that democratic legitimacy

34
Ibid, 474.
35
Aharon Barak, Unconstitutional Constitutional Amendments, 44 (3) Israel Law Review 321, 336 (2001)
36
Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central
and Eastern Europe, 46 (2nd ed. 2014)
37
Of course in jurisdictions like the United States such arguments seem to have more force because there is no
power of judicial review expressly given in the Constitution.
38
Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central
and Eastern Europe, 46 ( 2nd ed. 2014)
inherent in a provision that is found in the text of the constitution. In jurisdictions like Pakistan,

the counter-majoritarian criticisms are aggravated because of this. Any such doctrine

contradicts Article 239 (5) and (6) of the Constitution of Pakistan which specifically bars the

judiciary from reviewing any constitutional amendment; and goes on to state that there is no

limit on the power of Parliament to amend the constitution. In India, once the Supreme Court

had laid the groundwork for the doctrine, the legislature passed the 42nd amendment in 1976,

which determined that constitutional amendments are not subject to judicial review.39 The

Supreme Court of India would rule that this amendment was unconstitutional as it violated the

basic structure of the constitution.

Both examples show the inherently undemocratic and counter-majoritarian role that the

basic structure doctrine plays, in a way that cannot be compared to judicial review of ordinary

legislation. A decision in ordinary judicial review can always be subject to change via a

constitutional amendment. This mitigates counter-majoritarian concerns. This is not true when

dealing with the basic structure doctrine. It is thus an undemocratic aberration, that gives the

people no chance to disagree with the judiciary.

Furthermore, while ordinary judicial review has certain parameters and limitations,

such as the rules of standing, the basic structure doctrine provides no such limitations. There

is nothing in the constitutional text of any of the abovementioned countries in South Asia that

could inform the legislature what counts as the basic structure of the Constitution, or when, for

that matter, the legislature exceeds its authority regarding it. This directly ties into my next

point. One of the main concerns raised against judicial review, especially in the contentious

debates about unenumerated rights, is that it may allow judges to roam free imposing their own

subjective moral views on the will of the people.

The basic structure doctrine is the manifestation of this nightmare. In Pakistan, the

39
Aharon Barak, Unconstitutional Constitutional Amendments, 44 (3) Israel Law Review 321, 333 (2001)
judiciary has conveniently described the elements of this doctrine at a very high level of

generality. Thus, democracy, a parliamentary form of government and the independence of the

judiciary are factors that form a part of this basic structure.40 Only one of these factors needs

to be highlighted to show how easily one could justify striking down any amendment under

such broad conceptions: democracy.

This is a concept so broad, that the judiciary could presumably shoehorn anything and

everything under the sun to justify striking down a constitutional amendment. For example,

some views say that the Sharia is repugnant to democracy.41 Would this mean that any

constitutional amendment that sought to increase the power of Pakistan’s Federal Sharia Court

would be unconstitutional? Which concept of democracy are we following exactly? Pakistan

is a democratic country where Islam is the state religion and enjoys preference over other faiths.

Many would view this as an ‘undemocratic’ feature, but many in Pakistan may not. So which

idea of democracy would the judiciary follow? It would seem that the standard would be

whatever concept of democracy is favored by a majority of unelected judges as opposed to the

elected representatives of the people.

The most famous footnote in American Constitutional Law is footnote 4 of Carolene

Products42 as it asked for heightened review by the judiciary in cases concerning discrete and

insular minorities. This ties in with one of the most famous justifications for judicial review:

the protection of minorities. Putting aside the fact that it is questionable whether this is really

the best justification for judicial review of ordinary legislation. 43 It surely falls flat on its face

when attempts are made to justify something like the basic structure doctrine through it. The

basic structure doctrine has never made the protection of minorities the focal point of its

40
District Bar Association (Rawalpindi) v. Federation of Pakistan, PLD 2015 SC 401, Para 180
41
The ECt.HR took this view in Refah Partisi v. Turkey (Application No. 41340/98) (2001). A view that this
author disagrees with.
42
United States v. Carolene Products, 304 U.S. 144 (1938)
43
See Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of
Central and Eastern Europe. Chapter 2 (2nd ed. 2014) for an alaylysisn of this justification.
legitimacy. None of the features identified by the Supreme Court of Pakistan or India point to

some overarching minority protection rationale behind the rise of the basic structure doctrine.

This point is not particular solely to these two countries either.

Dixon and Landau make, what I believe, is the strongest argument for having something

like the basic structure doctrine (or provisions that provide for invalidating constitutional

amendments in general). They argue that such principles prove useful in preventing fragile

democracies from democratic erosion.44 This is an argument similar to those made regarding

militant democracy. Although a judiciary with the power to declare constitutional amendments

unconstitutional may certainly be well suited to guard against potential amendments that might

fracture fragile democracies, I believe the basic structure doctrine is distinguishable from many

other provisions that provide for such power.45

The point is that although one can argue that the basic structure doctrine can be used to

protect fragile democracies by, for example, protecting principles like the separation of powers.

The lack of a clear limiting principle is too high a cost to pay. The Indian Supreme Court went

on a frolic of its own with regards to the interpretation of ‘compensation’ in the constitution.

Similarly, in Colombia, the Constitutional Court in 2008 struck down a constitutional

amendment that attempted to create a temporary provision that allowed the civil service regime

to ratify all incumbent office holders in their posts during a three-year period without opening

their positions to civil service compensation.46 But as Dixon and Landau point out, “the shape

of the meritocratic regime, and in particular its application to incumbents, appear to raise a

complex balancing of values that would normally be within the realm of democratic

44
Dixon and Landau, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional
amendment, ICON Vol. 13 No.3, 606, 611 (2015). Also see Samuel Issachroff, Constitutional Courts and
Democratic Hedging, 99 Geo. L. J. 961, 999 -1001 (2011).
45
See Waqqas Mir, Saying not what the Constitution is…but what it should be: Comment on the Judgment on the
18th and 21st Amendments to the Constitution. Volume 2 LUMS Law Journal 64 (2015), for this argument being
made about the ruling in Pakistan. In India, consider the case of Indira Gandhi v. Raj Narain, A.I.R. 1975 S.C.
229 (India). And in Bangladesh the 8th Amendment was directed at the judicial system.
46
Dixon and Landau, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional
amendment, ICON Vol. 13 No.3, 606, 621 (2015)
contestation.”47 But the people were robbed of this democratic process by the judiciary.

These examples show that in the absence of a limiting principle in the text of the

constitution, judge made innovations like the basic structure doctrine can interfere in nearly

any subject of a constitutional amendment. It does not need to be even remotely related to any

principle of militant democracy. Thus, the adoption of the basic structure doctrine comes at too

high a cost to the democratic process. If fears of ‘undemocratic’ constitutional amendments do

exist in fragile democracies, then the best solution would be to adopt eternity clauses that are

enacted in the constitution itself.

CONCLUSION

Conclusively, a judge made methodology for striking down constitutional amendments

cannot be treated the same way as judicial review of ordinary legislation, as Justice Barak

suggested. First, as I have explained, the basic structure doctrine exacerbates the problems of

counter-majoritarianism which cannot be justified the same way that it can be for judicial

review of ordinary legislation. The tendency for judges to impose their own subjective views

on the people is aggravated in the realm of the basic structure doctrine. Furthermore, while

judicial review may have some justification as a necessary tool for the protection of vulnerable

minorities, the basic structure doctrine has never espoused such a rationale to justify itself. The

doctrine has mostly been used to protect the judiciary. But this means that it can possibly be

used in the militant democracy context. However, this paper has argued that the doctrine is too

malleable and cabining it within specific boundaries is too elusive a task Proponents of the use

of the doctrine should ponder over the very apt observation of Justice Nisar of the Supreme

Court of Pakistan who voted against the use of the doctrine: “[T]he Constitution does not end

47
Ibid.
(it certainly did not begin) with the Judges, and the courts would do well to remember that.”48

The constitution begins and ends in the hands of the people.

48
District Bar Association (Rawalpindi) v. Federation of Pakistan, PLD 2015 SC 401.