By Yasser Latif Hamdani
H M Seervai’s basic structure theory has come alive once again in Pakistan with the new deadlock on the judicial commission.
Lawyers opposing the move are of the view that the proposed commission is violative of the basic structure of Pakistan. Supreme Court in its infinite wisdom laid down that Pakistani constitution has a basic structure comprising the following:
1. Parliamentary Democracy
2. Federal Character
3. Islamic Character
4. Independence of judiciary
This begs a question ofcourse as to whether the basic structure theory has any place in a country which changes its basic character every now and then?
Pakistan has had no less than 5 full fledge constitutions. It has been a Dominion, an Islamic Republic, a simple republic, back to an Islamic Republic. It has tried several different types of elections ie it has had joint electorate, separate electorate, joint and separate at the same time, adult franchise, basic. democracy etc etc. It has had a presidential constitution and a parliamentary one. It has had four of its constituent units subsumed into one and then back to four. It has had an extremely strong prime minister and a mouse president and many strong presidents and their mouse prime ministers. It has had uniformed presidents as well as Sherwani clad ones. Most of them have had the power to dismiss the parliament almost at will. So what is the point of raising the basic structure theory.
But if one was to humor those who believe this theory, who would determine that the current proposed judicial commission violates independence of judiciary. The answer to that ofcourse is the Supreme Court- using persuasive precedents from India and its own judgments in the Judges Cases I, II and III.
Thus the Supreme Court shall sit in judgment over its own cause. Brilliant. The basic structure theory is flawed especially in Pakistan. In India ofcourse it helps safeguard India’s democracy and progressive spirit of the constitution. In Pakistan it hinders progressive growth.
Qazi Anwar – the genius president of SCBA and an ANP activist- is the loudest voice in support of this entirely misplaced theory. It shows us how the cookie crumbles in our country.
Let us bury this theory. It is not for us.