Saturday, August 08, 2015

The Supreme Court of Pakistan Recognizes "Basic Stucture"

13 out of 17 judges of the Supreme Court of Pakistan held that the Supreme Court has intrinsic powers to review the constitutionality of a constitutional amendment. While the "basic structure" doctrine had been argued before the courts since the late 1980s, this is the first time that it has recieved overwhelming judicial recognition. In a 900 page judgement (beating the length of the judgment in Kesavananda Bharti) the majority of judges upheld the constitutionality  of the 18th and 21st amendments to the Pakistan constitution. Upholding the constitutionality of an impugned amendment while asserting their right to review has been a fairly common feature of the initial basic structure cases in India as well. Interestingly, the identified salient features include parliamentary democracy and judicial independence, but omit any reference to Islam

 The 18th amendment had laid down a new procedure of judicial appointmens while the 21st amendment was enacted following the Peshawar school massacre to set up a series of military courts to try cases involving terrorism. 

With this decision, Pakistan joins Bangladesh, Nepal, Sri Lanka and India in recognizing intrinsic limits to amendment powers. Given the history of the Supreme Court of Pakistan, the arrogation of veto powers over the constitution has divided opinion. Some critiques can be found here (Babbar Sattar), here (Ejaz Haider). The judgment itself is available here
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