Controversy is embedded in Pakistan's DNA. It, more than democracy or the process for appointing judges, is part of our 'basic structure'. -Photo by APP

ISLAMABAD The claim parts of the 18th Amendment should be struck down for violating the 'basic structure' of the Constitution. The object of ire is the new process for appointing judges to the superior judiciary (Article 175A).

The question does the Supreme Court have the power to do so? And if so, in what circumstances?

The answer it's complicated.

In constitutional matters, the first port of call is the text of the Constitution itself. Article 239(5) reads “No amendment of the Constitution shall be called in question in any court on any ground whatsoever.”

The very next clause (6) is “For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (parliament) to amend any of the provisions of the Constitution.”

The two clauses were inserted by Gen Zia and validated by the 8th Amendment. “The idea was to give parliament confidence,” explained Wasim Sajjad. “It was a way of suggesting, 'Do whatever you like, it's your business now'.”

“Another reason was that in India the courts had appeared to suggest that they had the power to strike down changes to the constitution, and the clauses were introduced to suggest that was not the case for Pakistan,” Sajjad continued.

Case closed, then? Not quite.

The relevant parts of Article 239 amount to what in legal parlance are known as 'ouster clauses', i.e. the legislature tells the judiciary that it has no power to examine the legality of the laws concerned. But courts the world over have tended to be dismissive of such clauses, either voiding them outright or defining their scope very narrowly.

So we have to move on to the case law. According to Feisal Naqvi, a Lahore-based lawyer, “There is no categorical statement anywhere in Pakistani judgments that says the Supreme Court has the power to strike down an amendment.”

What has happened on at least three occasions, though, is that the Supreme Court has mentioned the existence of 'salient features' and 'basic characteristics' in the Constitution.

In one of those judgments, Wukala Mahaz (1998), then-chief justice Ajmal Mian posed a tantalising question “If the parliament by a constitutional amendment makes Pakistan as a secular state, though Pakistan is founded as an Islamic ideological state, can it be argued that this court will have no power to examine the vires of such an amendment.”

Naqvi argued that even if there is such a thing as a 'basic structure' that the Supreme Court must protect, justice Ajmal Mian's question suggests the court can only act in extreme cases. “Complete rewriting of the Constitution appears to be the touchstone,” Naqvi said.

But such fundamental rewriting of the Constitution does not lie at the heart of the complaint in the petition filed by Karachi-based lawyer Nadeem Ahmed. Rather it is the role of the present government “Article 175A... represents the fourth attempt of the executive to acquire control over the judicial organ,” Ahmed alleges in his petition.

Both Ahmed and his lawyer, Akram Sheikh, emphasise the “circumstances and background” to the 18th Amendment.

“The secretiveness, haste and timing are relevant. The judiciary is under attack by the government. Half the cabinet is facing charges, the law minister has said he'd 'rather die' than implement judgments, there have been three attorneys general in quick succession,” argued Ahmed.

“It is with these circumstances in mind that the amendment should be viewed. Even otherwise, there was no need for a new process. Not a single judge appointed under the old process has been accused of any wrong.”

Left unsaid was the fact that it was under the old process that judges such as Abdul Hameed Dogar, Gen Musharraf's emergency-era pick for chief justice, were appointed.

An incensed Athar Minallah argued “All those who've suddenly remembered the 'basic structure' were more than happy to appear before the Dogar court. Where were their concerns about structure then?”

Raza Rabbani was also dismissive “I can say very emphatically that the basic structure of the Constitution has not been affected.”

“When we were toying with the idea of the judicial commission, we were very clear on two things one, independence of the judiciary should not be touched; and two, the 'trichotomy of powers', which had earned a mention in two recent cases of the Supreme Court, not be disturbed.”

Rabbani also posed this question “If anything, the 8th and 17th amendments altered the 'basic structure' of the Constitution and yet they were subsequently validated by the judiciary. How can the judicial appointment process be compared to those amendments?”

“It will be awkward for the Supreme Court to strike down the (18th) amendment,” Wasim Sajjad observed. “Nobody has ever set aside a constitutional amendment. This one was passed unanimously by parliament.”

Athar Minallah went further “I challenge anyone who claims Article 175A is against the interests of the judiciary and democracy. It enhances transparency. (Those arguing against it) look down on the elected representatives and are expressing their contempt for the people of Pakistan.”

Difficult or not, advisable or not, the bottom line is this the Supreme Court is the 'decider' here. Notwithstanding past judgments, it alone will decide whether a constitutional amendment can be struck down and whether anything in the 18th Amendment deserves to be struck down.

So what's next?

A lawyer requesting anonymity because he appears before the superior judiciary claimed, “We'll know very soon if the court intends to take this further. If a larger bench, seven members, is formed, then the court may be in the mood to reverse itself on the position taken in the Pakistan Lawyers' Forum case.”

(That case, a 2005 judgment and the latest on the subject, notes that the 'basic structure' needs to be enforced not by the judiciary but by the “body politic, i.e. the people of Pakistan”. A certain Chief Justice Iftikhar Chaudhry was part of the five-member bench.)

Ather Minallah pleaded for caution “We are at a juncture where everyone must act with wisdom and set aside dislike for certain individuals.”

He added, “There is a very strong undemocratic mindset behind these petitions. They must not be allowed to succeed in making the Supreme Court controversial.”

But controversy is embedded in Pakistan's DNA. It, more than democracy or the process for appointing judges, is part of our 'basic structure'.

What else can explain the fact that applause for the 18th Amendment has barely subsided and already the 'land of the perennial crisis' is bracing itself for the next round?