Basic structure Theory And Our Constitutional Crisis

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.

5 Comments

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5 responses to “Basic structure Theory And Our Constitutional Crisis

  1. yasserlatifhamdani

    Frankly I don’t understand why we are always excited about history but never discuss current issues like the constitutional deadlock!

  2. Jeera Blade

    Why only criticise Qazi Anwer and Akram Sheikh? Why not go to the source of the problem, your ‘Cheap’ Justice who is responsible for this deadlock and significant obstacle in the process of constitutional amendments. These people are just the mouth-piece of the great cheap-justice you fought to restore. I was watching Naseem Zehra’s program just now, with Kurd and Tariq Mehmood, regarding the conduct of the judges and how they are going about their business in the courtroom, it is shameful to say the least. I am starting to believe what Musharraf said about the guy and wondering why he would use such a coarse word when he sacked him, although Musharraf was a megalomaniac.

  3. yasserlatifhamdani

    Agreed. And nice one …

  4. B. Civilian

    YLH.. what happens if and when we do manage to have a ‘basic structure’ which is worth preserving… in perpetuity?

    or since what is ‘worth preserving’ to some would be unworthy of preservation to others, each parliament should be free to restructure the basic, fundamental structure?

  5. yasserlatifhamdani

    I think it should be open to each parliament.

    Frankly I’d like to see a simple majority for constitutional amendment.

    Here is why you and I will not lose …the status quo is not in our favor. But we can be assured that with each passing year and information age, people will think more and more in terms that are rational and substantial.

    So if we could abandon this basic structure for the basic principle that no one generation can bind the next to its follies… we would manage to create a great democracy.

    Ofcourse a simple majority may not work out in a federation but then perhaps a simple majority of each constituent unit’s members of federal parliament would also do.

    Ah wish list.