Basic Structure Mockery

By YLH

From Dawn today:

Mr Haris, on the other hand, argued that the Constitution of Pakistan, like other constitutions, had its own basic structure and unique personality and that parliament did not enjoy unfettered powers to bring any kind of amendment.

According to him, the salient features as developed by courts were federalism, a parliamentary form of government blended with Islamic provisions, fundamental rights and independence of the judiciary. “And the force that binds and holds all the salient features together is that sovereignty belongs to Almighty Allah,” he said.

Khwaja Haris said the salient features were the four pillars which were holding up the entire edifice of the Constitution. Weakening any one of them would endanger the entire edifice, he said, adding that all the four salient features had been derived from the Objectives Resolution that had become a substantial part of the Constitution.

This strikes me as a rather strange argument.  If we accept the basic structure theory – which is a controversial issue- and also assume that the parliament cannot change the said basic structure through the normal prescribed method of constitutional amendment,  it surely cannot be contained in the Objectives Resolution.  Khawaja Harish says that all the four salient features had been derived from the Objectives Resolution that had become a substantial part of the Constitution.

The Objectives Resolution became the substantive part through 1985’s order 14, which was granted indemnity through the eighth amendment.  That the eighth amendment changed the basic structure of the parliamentary constitution is well known. Also well known is that it indemnified the illegal actions of a coup maker who committed treason.   Eighth Amendment therefore suffers from the same illegality vis a vis the basic structure as is being alleged about the eighteenth amendment.  If the Eighth Amendment is illegal,  as it should be,  then so is the order that made Objectives Resolution the “substantive part” of the constitution.  The whole thing suffers from the grandfather paradox.

I am surprised that people with responsible positions can come up with such spurious arguments as the one quoted from the news story or the argument about “secularism” that CJP recently put forth.

7 Comments

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7 responses to “Basic Structure Mockery

  1. Faisal Naseem Chaudhry

    I am not surprised at the arguments of Khawaja Haris in his capacity as Advocate General of Punjab. I am again not surprised what Barrister Shahid Hamid had been arguing as lead counsel representing the Govt of Punjab. What brings surprise to me is the reaction of the Supreme Court itself i.e. two counsels of the same Govt of Punjab, both coming up with different arguments and reasoning. Lets put it in another way. If the Attorney General had adopted the arguments of Khawaja Haris, and one other counsel representing the Federation had adopted the arguments of Barrister Shahid Hamid, there would have been hell in the Court Room ? “Go and ask your client what it wishes to submit before this Court”, “Do not try to confuse us”, “Dont waste our time” etc etc. But you see when it is the Govt of Punjab, the tables are turned.

    Those who wish to understand this ‘basic structure doctrine’ kindly see a very well-written article of Feisal Naqvi wherein you can also find excerpts from 2005 Pakistan Lawyers Forum case to which the incumbent CJ was also a signatory of the unanimous judgement.

    http://monsoonfrog.wordpress.com/2010/04/23/what-basic-structure-doctrine/

  2. Faisal Naseem Chaudhry

    Raza !!

    What is YLH ???

  3. YLH is Yasser Latif Hamdani our cyberzine’s writer and co-editor.

  4. Majumdar

    Yasser Pai,

    ….Khawaja Harish says that all the four salient features had been derived from the Objectives Resolution that had become a substantial part of the Constitution…..

    It is “Haris” not Harish. Harishbhai is an honourable person who has never dabbled with the Constt of India, let alone Pakistan.

    Why has someone not approached the SC for overturning the Eighth Amendment and all such other illegal acts promulgated during the period of dictatorships on grounds of being ultra vires of the original constt?

    Regards

  5. Faisal Naseem Chaudhry

    Raza sahib,

    The following link leads to the website of Supreme Court, and that particular page which opens the 17th Amendment Judgement in PDF format. If you like, you can put this link on PTH so that people can download and read the reasoning of present CJ as to what were his views in 2005. Basic Structure Doctrine was rejected through a well-reasoned judgement.

    http://www.supremecourt.gov.pk/web/user_files/File/JR_Judgment_on_17th_Amendmend_and_Presidents_Uniform_Case.pdf

  6. krash

    Excellent link, Faisal.

    Perhaps we need another constitutional amendment that explicitly says that “this constitution will not be deemed to have an inviolable basic structure” .

  7. TUT-TUT, although Raza Rumi has articulated his case very well … I am afraid that while the basis of Khawaja Harris’s argument is inaccurately founded, and end doles not justify the means … I am of the view that the Constitution of Pakistan has a salient and basic structure: federalism+HR+democratic (not demoncratic) form of good (not GOODS) governance+independence of judiciary (includes the values surrounding ‘judiciary being first among equals (primus inter pares) with power ( very-substantive in deed but not in deeds) to Review (which it abused during the pre-NEW NATIONAL POLICY days. All this stems from the concept of Amanat, “Bill Haaq” and accountability based on transparency values which inhere in all the mankind since time immemorial .. people as viceroys of God on earth.
    I buy Raza that the 8th Amendment and the Presidential Executive Order are in fact nullities warped by baD FAITH AND WRAPPED IN HYPER-HYPOCRisy (WHEN WILL MY UNSOLICITED HABit of capitalizing words midstream terminally end?).
    The Arguments of Kh. Harris are like Restatement of the Empire State Building built on fluffy foundation. The result of his arguments is ok, but their foundation and basic structure is weak and shaky.
    Credit must be accorded where it is due although I have challenged the appointment of Kh Harris as Advocate-General of Punjab because it was not made on merit and is not based on non-networking and public advertising. Since the Sixties we never had any Good Governance or parliamentary form of government anywhere in Pakistan.