IN rendering its judgment in the 1973 case of the Indian Supreme Court adopted a novel theory of judicial review of constitutional amendments: the basic structure theory. This theory posits that under a written constitution the courts are impliedly empowered to sit in judgment over the substantive validity of not only ordinary legislation but also constitutional amendments so as to preserve the fundamental structural features of the constitution originally put in place by the founding assembly.

While the Bangladesh Supreme Court is so far the only court to have followed the Indian lead (but only to annul amendments forced into the constitution by a military dictator, not those freely made by an elected parliament) the challenge to parts of the 18th Amendment to Pakistan's constitution seeks a similar restructuring of authority between the state's legislative and judicial branches. Such a restructuring, if adopted, would constitute the most significant constitutional event in the country's history. Its implications, given Pakistan's peculiar constitutional history, will continue to play out for several turbulent years.

Even though the Indian Supreme Court declared the theory of basic structure review a borrowing from West Germany it was obvious then, and remains so now, that the Indian version had gone far beyond the alleged source. In Germany the basic law of 1949, itself an interim enactment, had declared certain very broad, entirely uncontroversial principles relating to the preservation of human dignity to be unamendable by transient majorities in parliament. Crucially, this was expressly stated and not left to implication by the courts.

Equally important is the fact that the enclave of unamendable principles created by the basic law, effectively a manifesto against fascism, was never seen in Germany as preventing fundamental changes to the institutional structure of the state. In the years since 1949 these changes have included a ceding of key aspects of state sovereignty, such as ultimate judicial authority as well as control over the money supply of the state, to the institutions of the European Union.

Prior to the emergence of the basic structure review theory in India the power to amend the constitution was universally seen as the ultimate preserve of a free and sovereign people, from each generation to the next, with no involvement of the courts as regards the substance of the amendments.

While constitutions based on the US model have generally considered ordinary legislation to be reviewable by the courts on the touchstone of consistency with the constitution, amendments to the constitution itself, whether wise or unwise, have been seen to implicate questions of political morality to be addressed in the political domain through democratic engagement. The Indian basic structure theory is a negation of this preserve. Rhode Island v Palmer

This is a negation not shared by other jurisdictions in which fundamental rights, democracy and judicial review have flourished at least as well, if not better, as in India. In the 1920 case of the US Supreme Court heard the plea that the amending power be declared a limited power. The usual rhetorical questions — what if Congress declares the US a monarchy or extends its own tenure indefinitely — were heard but left unanswered as speculative. State v Lennon

The Irish Supreme Court was the first court to carry out a full examination of the basic structure theory in its 1934 judgment in the case of . The majority held the amending power to be unfettered even though the amendment under challenge was found to be a fundamental departure from the original scheme of the 1922 Irish constitution.

The basic structure theory of judicial review not only causes a shift in authority between the judiciary and parliament it also serves to create an inter-generational imbalance by placing the present and future generations of citizens in a position of subservience to the supposed unalterable will of the founding generation. Kesavananda sui generis

Justice Khanna, while writing the leading judgment in , had to confront the question: if the basic structure theory is true how are existing and future generations to assert their full freedom as a people within the constitutional framework? His answer in paragraph 1444 (AIR 1973 SC 1461) is in effect a dispiriting and dangerous call to subversion: the people will have to act outside the constitution. The more satisfactory answer, excluded by the basic structure review theory, is that each generation may exercise its full capacity to order it collective existence through the amending power provided by the constitution itself. Pakistan Lawyers' Forum

While the Pakistan Supreme Court has so far consistently repudiated the basic structure theory, most recently in 2005 in its judgment in the case of , the adoption of the theory by the Indian Supreme Court has resulted in the invasive act of reading into the text of the constitution a theory never contemplated by the founding or any subsequent Indian parliament. Should Pakistan follow the Indian path? The circumstances leading to Pakistan's 1973 constitution provide a far weaker warrant for adopting the basic structure theory than in India. The constituent assembly that adopted the Indian constitution in 1949 could at least lay claim to being an assembly consisting of the founding fathers who had led the freedom movement and could assert a moral mantle higher than that available to subsequent parliaments.

As justification for the alleged power of the assembly elected in Pakistan in 1970, and what was left of it after the dismemberment of the country, to exclude future generations of Pakistanis from fundamental constitutional amendments the basic structure apologists can only point to the authority of the martial law of 1969 and the 1970 Legal Framework Order — an instrument that was as void as the Provisional Constitution Order of Nov 3, 2007 — issued by the usurper Gen Yahya Khan. Zia ur Rahman v The State Pakistan Lawyers' Forum n

This is an argument rejected by the Supreme Court in its pivotal judgment in the case of when it held that the assembly elected in 1970 had the same powers and was under the same restraints as any assembly that may be elected with the votes of the people. These restraints are always moral and political with respect to constitution-making and apply from generation to generation. It was this timeless wisdom that was repeated by the judgment, subscribed to by the present chief justice, in when restraints on constitutional amendments were declared to be only political, to be applied by the people and not the courts by declaring constitutional amendments unlawful on the basis of a vague theory.

The writer is an advocate of the Supreme Court of Pakistan.

salman.raja.zir@gmail.com