Conclusion
Descriptions of judicial activism are often associated with broad notions of public interest: judges encroach on the policy-making domain to protect - of their own accord (e.g. via suo motu powers) - the interests of ordinary citizens.
With reference to constitutional “basic structure,” however, judicial activism is also associated with broad institutional interests: judges encroach on parliament’s constituent power to protect the interests of the judiciary. In Pakistan, however, patterns of judicial activism rooted in basic-structure jurisprudence are often more idiosyncratic than institutional.According to one retired Supreme Court chief justice, the future of basic- structure jurisprudence in Pakistan should be framed as a choice between (a) broad constitutional principles tied to an institutional balance-of-power and (b) specific judicial personalities. He saw little evidence supporting an entrenched
Parliamentary piety in Pakistan 131 commitment to principles; after all, he noted, 8 of the 13 justices who asserted that Pakistan’s Supreme Court was empowered to strike down duly promulgated constitutional amendments in District Bar Association Rawalpindi did not agree on a list of constitutional salient features. In fact, he saw occasional references to constitutional “salient features” as little more than passing obiter dicta. Specifically, turning to the historical contingencies surrounding basic-structure jurisprudence in Pakistan, he noted that, with reference to “religious issues” like Article 62(1)(f), the role of “individual judges” was crucial.
Given this focus on historical and political contingencies alongside the idiosyncratic work of individual judges, one might ask whether assertive forms of basic-structure jurisprudence will persist in Pakistan without an unusually assertive chief justice backed by a popular protest movement.
This is a hypothetical question. But, after the short order in Nadeem Ahmed was handed down under Chief Justice Chaudhry in 2010, the fact that 13 out of 17 justices in District Bar Association Rawalpindi (2015) endorsed a “proscriptive” understanding of basic-structure jurisprudence two years after Chaudhry retired in 2013 is telling. The vastly different personnel associated with District Bar Association Rawalpindi (2015) might suggest that, while individual judges are important, the Court as a whole still matters.Precisely insofar as individual judges underpin the pursuit of institutional interests, however, it is difficult to overlook the importance (indeed, the judicial politics) surrounding judicial appointments - arguably the most common and contentious area within the realm of basic structure jurisprudence worldwide. Indeed, what might be described as the “curation” of Supreme Courts - in Pakistan, a Court empowered to frame the legal parameters of Islam within which the careers of individual parliamentarians are defined - is crucial. As I have noted elsewhere, the link between basic structure jurisprudence and religion often unfolds via debates regarding the appointment of individual judges.[461]
Few in Pakistan believe the state should avoid articulations of religious standards for public life. The question is merely which branch of the state, and which individuals within that branch, might have the final word when articulating these standards? Historically, parliamentarians have been too divided to meet the threshold for amendments touching on Islamic provisions (not only with respect to constitutional amendments but also ordinary legislation).[462] Cross-party coalitions face special hurdles. But, even when single-party governments have succeeded in securing the majorities needed for constitutional amendments - for example, after 1997 - those governments have come to power on a platform
stressing “Islamic” credentials, making them even less likely to amend (let alone repeal) the constitution’s Islamic provisions.
Indeed, notwithstanding widespread political interest in repealing “obscure” terms like ameen, Justice Khosa noted that Pakistan’s parliament was “most unlikely” to “amend the Constitution for achieving something which may offend against any express Divine [i.e. Qur’anic] command.” In Pakistan, he noted, doing so could “negate the raison d’etre of the country’s conception, creation, and existence.” But, he added, returning to his own focus on parliament’s constituent power, if Pakistan’s parliament were to proceed in this direction, the Supreme Court would not be in a position to “shackle it.”
In Pakistan, familiar controversies regarding the possibility of “unconstitutional constitutional amendments” are closely tied to debates regarding the meaning of Islamic constitutionalism. Justice Khosa’s view, regarding the unfettered power of parliament, is broadly in keeping with the position of Pakistan’s Supreme Court before 2010. But, since 2015, Justice Khosa’s view is no longer the majority view.
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