By Farrukh Saleem
ISLAMABAD: Article 1 of our Constitution states, “Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan…” A Federal Republic, by definition, is a “federation of states with a republican form of government.” And, a republic is a “type of government where citizens choose the leaders of their country”.
To begin with the 18th Amendment has done away with political parties holding regular elections within for office-bearers and party heads. In effect, the Amendment seeks democracy outside of the political parties and, at the same time, sanctions dictatorship inside. That’s strengthening dynastic politics at the cost of democratic norms.
The Amendment defines party head as “any person, by whatever name called, declared as such by the party.” Under the Amendment, the party head, whether elected or not by citizens, can unseat members of Parliament and can even sack the elected prime minister. That in essence vests sole and absolute power-with hereditary ascension-in the hands of the party head. That’s constitutionalising tyranny-all in the name of strengthening democracy.
On December 29, 2003, Dictator Musharraf forced the passage of the 17th Amendment through the National Assembly in a few hours. The Senate passed it the following day, and it received presidential assent the day after. The 18th Amendment-also forced through Parliament-was meant to right the wrongs of the 17th. But the 18th has gone much beyond righting the wrongs of the 17th.
Take, for instance, the setting up of the Judicial Commission of Pakistan. To be sure, there are principles within the ‘framework of our Constitution that are inviolable and hence cannot be amended by Parliament. These principles are termed as the basic structure of the Constitution.
In 1969, the Indian Parliament passed the Bank Nationalization Bill. Six months later, the Indian Supreme Court invalidated the government-sponsored Bank Nationalization Bill. In 1970, a presidential order abolished the titles, privileges, and privy purses of the former rulers of India’s old princely states. The Indian Supreme Court rejected the presidential order as unconstitutional.
The Indian Parliament responded by passing an amendment empowering itself to amend any provision of the Constitution, including the fundamental rights.
The 25th Amendment was passed by Parliament, making legislative decisions concerning land compensation non-justiciable. Parliament also passed an amendment that abolished princely privileges and privy purses. On April 24, 1973, the Supreme Court of India ruled that the “basic structure of the Constitution cannot be altered for convenience”, and that the “court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by decaling that the amendments cannot change the Constitution’s basic structure.”
Kesavananda Bharati Vs The State of Kerala—a landmark decision of the Indian Supreme Court—is now the “basis for the power of the Indian judiciary to review and strike down amendments to the Constitution of India passed by the Indian parliament, which conflict with or seek to alter the Constitution’s basic structure.”
On January 11, 2007, a 9-member Supreme Court Bench unanimously reaffirmed the “basic structure doctrine”. According to Soli Sorabjee, a former attorney general, the judgment “vigorously reaffirms the doctrine of basic structure. Indeed it has gone further and held that a constitutional amendment which entails violation of any fundamental rights, which the Court regards as forming part of the basic structure of the Constitution then the same can be struck down depending upon its impact and consequences. The judgment clearly imposes further limitations on the constituent power of Parliament with respect to the principles underlying certain fundamental rights.”
The 18th Amendment has anti-democratic provisions that shall radically transform Pakistan’s federal, parliamentary democracy to a hybrid snatching the balance of power away from elected representatives to unelected party heads.
The Supreme Court of Pakistan is the guardian of the “basic structure” of our Constitution and the highest court of appeal. The Supreme Court of Pakistan is also the ultimate interpreter of our Constitution.