THE acceptance by the Supreme Court of the basic structure or basic features doctrine as a basis for declaring a constitutional amendment void will, if it happens, be the single most significant juristic event in Pakistan's constitutional history.

This doctrine holds that even when there are no express restrictions on the power of parliament to amend the constitution it is open to the superior courts to declare a particular amendment 'unconstitutional' on account of such amendment being in violation of the 'basic structure' of the constitution.

The doctrine further holds that it is for the courts alone to say which aspects of the constitution are more 'basic' than the rest. Other questions then arise when is an amendment so drastic as to obliterate a feature identified as basic by the court?

It is critical not to confuse the basic structure doctrine with the well-founded power of judicial review of ordinary legislation as well as executive actions. Such judicial review is ultimately carried out on the touchstone of the constitution. What is it that stands above the constitutional process so as to allow judicial review of amendments to the constitution itself?

The basic structure doctrine is a unique invention of the Indian Supreme Court and first articulated in the 1973 case of Kesavananda Bharati v. the State. No other court outside India, except the Bangladesh high court in one judgment authored by two judges, has accepted the validity of this doctrine while several superior courts have expressly rejected the notion that there are unwritten restrictions on the power of parliament to amend the constitution.

The idea that parliament that adopted the original text of the constitution possessed powers greater than those available to subsequent parliaments and could, therefore, bind later parliaments and the people as a whole for all times to come remains in need of sound jurisprudential grounding.

It is a peculiarity of the Kesavananda judgment that the slim seven-six plurality in support of adoption of the basic structure doctrine could not provide a coherent set of grounds on which the majority could all agree. Indeed, each of the grounds adopted by one or more of the seven judges in support of the basic structure doctrine was rejected by a majority of the court, including those judges who accepted the doctrine on other grounds.

The only proposition that appears to have ultimately found majority support, particularly in judgments after Kesavananda, is the idea that the basic features of the constitution are not to be found in the preamble but must be found in the originally drafted substantive parts of the constitution. In the Pakistani context this would oust recourse to the Objectives Resolution of 1949 as a repository of the basic features of the constitution.

More generally, the implication of the basic structure doctrine that major constitutional changes may only be brought about by the subversion of the constitution either through a revolution or a coup has found little favour with the great majority of academic observers outside India. Such commentators distinguish constitutions, such as those of Germany and Turkey, that contain express limitations on the amending power as regards certain embedded provisions from other written constitutions, including those of the US, Australia, New Zealand, South Africa, Malaysia, Sri Lanka, India and Pakistan, that contain no such limitations.

Constitutions that allow for direct recourse to the people through a referendum are a third category. Several states in the US allow for amendments to state constitutions through direct initiative actions resulting in referenda. Such actions, while valid under state constitutions, have always been held to be impermissible at the federal level being inimical to the republican character of the federal US constitution guaranteed by Article 5. This guarantee is based on the Madisonian vision of representative democracy rather than Jeffersonian notions of direct democracy and underpins parliamentary structures the world over.

Inside India, the basic structure doctrine was originally considered an impermissible usurpation of authority by commentators as eminent as Seervai writing in the first edition of his monumental commentary on the constitution of India. However, over time the doctrine has gained in political respectability even though its jurisprudential basis has remained vague.

This respectability has come from two main sources. Firstly, from the use by the Indian Supreme Court of the basic structure doctrine to counter the worst excesses of the Indira Gandhi-led parliament in the run up to the emergency of 1975. Secondly, the basic structure doctrine has gained stature as a consequence of the identification and use by the Indian Supreme Court of secularism as a constituent part of the basic structure of the Indian constitution. In the landmark 1994 case of Bommai v. the Union, the court relied on secularism as a feature of the basic structure of the constitution to uphold the dissolution of Bharatiya Janata Party governments in several states elected to office on an avowed espousal of hindutva.

There can be little doubt that any adoption of the basic structure doctrine in Pakistan will inevitably result in Islam being identified as a part of the basic structure of the Pakistani constitution and, hence, a ground for the judicial review of not only constitutional amendments but also ordinary legislation as well as executive action. Indeed, the Supreme Court of Pakistan has already in Achakzai's case (1997), without fully embracing the basic structure doctrine, identified democracy, federalism, freedom of the judiciary and Islam as salient features of the constitution. Herein lies a constitutional conundrum.

The last time the injunctions of Islam were adopted by a significant number of judges among the superior judiciary of Pakistan as a ground for striking down legislation was during the period following the insertion of the Objectives Resolution of 1949 into the constitution as a substantive part by Gen Zia in 1985. The eighth amendment had then ratified the presidential order.

This period is best described as one of near anarchy. The Muslim Family Laws Ordinance, 1961, widely seen to be a law empowering women in certain respects, was a particular target of judicial review on the basis of the injunctions of Islam with key provisions, such as those regulating polygamy, being declared un-Islamic. Laws pertaining to women were by no means the only targets. Matters finally came to a head when in 1992 a full bench of the Lahore High Court declared Article 45 of the constitution void on the basis of the Objectives Resolution even though this article had been in the constitution since its inception.

This forced an intervention by the Supreme Court of Pakistan, through its judgments in the cases of Hakim Khan (1992) and Kaniz Fatima (1993), to declare that no part of the constitution or any other statute could be struck down by the high courts or the Supreme Court on basis of inconsonance with the injunctions to Islam. The Objectives Resolution was held not to be the grund norm of Pakistani constitutionalism. This salutary position as regards the use of Islamic provisions was reiterated by the full Supreme Court in the NRO judgment in paragraph 139.

Will the adoption of the basic structure doctrine not bring back recourse to an open-ended body of Islamic injunctions, and the subjectivity that inevitably accompanies such recourse, as a basis for attacking legislation? This is the conundrum that must be confronted.

The writer is a lawyer.