Constitutional amendments: From the Eighth (1985) to the Eighteenth (2010)
Within Pakistan, debates regarding unconstitutional constitutional amendments are not rooted in a history of judicial annulments. Instead, they grow out of enduring questions regarding the degree to which parliament's amending power might extend to “Islamic” provisions and, then, whether a parliamentary push to amend those provisions might lead Pakistan's Supreme Court to move away from
its traditional deference to parliament’s amending powers, effectively abandoning its “descriptive” account of the constitution’s salient features in favour a more robust “proscriptive” approach in which amendments seen as violating those features are annulled.[425] So far this has not occurred.
But, since 2015, politicians and judges have begun to consider whether it might.Two closely related amendments have shaped the emerging debate. The first is Pakistan’s Eighth Amendment (1985), which recast the Objectives Resolution as a substantive constitutional article (Article 2A) and indemnified several executive orders introduced by General Zia-ul-Haq after his military coup in 1977. This amendment also incorporated several provisions seeking to check the power of Pakistan’s parliament - for example, Article 58(2)(b), which endowed Pakistan’s president with discretionary powers to dissolve Pakistan’s parliament as a whole,[426] as well as provisions affecting individual parliamentarians, including Article 62(1)(f).
In an effort to stem the anti-democratic effects of this Eighth Amendment, however, the second relevant amendment is the Eighteenth Amendment (2010), which removed Article 58(2)(b) but left several references to Islam, including Article 62(1)(f), intact. As such, the constitutional threat facing Pakistani parliamentarians has shifted: from the discretionary power of Pakistan’s head of state or president under Article 58(2)(b) (1947-73, 1985-2010) to specific “Islamic” standards adjudicated by Pakistan’s courts via Article 62(1)(f) (1985-present).
6.3.1 The Eighth Amendment, the Eighteenth Amendment,
and Islam
To place these elements in context, it is important to note that Pakistan’s third Constitution (1973) was suspended following a military coup led by General (later President) Zia-ul-Haq in 1977. Zia ruled by decree until 1985, when non-party elections ushered in a new parliament that, in exchange for ending martial law, restored Pakistan’s third Constitution alongside an omnibus Eighth Amendment. Inter alia, this amendment recast Pakistan’s preambular Objectives Resolution as Article 2A while restoring Article 58(2)(b) and adding Article 62(1)(f). In fact, to protect these alterations from any judicial review, the Eighth Amendment also imported Articles 239(5) and 239(6) from India. These articles clarified that, henceforth, no amendment should be “called in[to] question by any court” as there was “no limitation” whatsoever on the amending power of
Parliamentary piety in Pakistan 119 parliament (at that time, a non-party parliament still dominated by General/ President Zia).
During the late 1980s and 1990s, however, even after the death of General Zia, Pakistan’s presidents routinely exercised the discretionary powers in Article 58(2)(b). Zia himself dissolved the government of Prime Minister Mohammad Khan Junejo in 1988. And, in 1990, Zia’s successor President Ghulam Ishaq Khan dissolved the government of Pakistan People’s Party (PPP) Prime Minister Benazir Bhutto. In 1993, President Khan went on to remove Pakistan Muslim League (PML-N) Prime Minister Nawaz Sharif. And, in 1996, Khan’s successor Farooq Leghari removed Benazir Bhutto (again). When Nawaz Sharif returned to power in 1997 with a huge single-party majority, however, he used that majority to repeal Article 58(2)(b) via Pakistan’s Thirteenth Amendment. Unfortunately, having repealed Article 58(2)(b), he was not removed by constitutional means but ousted in a military coup led by General Pervez Musharraf two years later. After cobbling together a new parliament in 2002, however, General (President) Musharraf pushed through a Seventeenth Amendment restoring Article 58(2)(b).
General (President) Musharraf later tried to sack Pakistan’s Supreme Court Chief Justice, Iftikhar Muhammad Chaudhry, after Chaudhry entertained a case challenging Musharraf’s bid to stand for re-election as president without first holding National and Provincial Assembly elections to create a fresh Electoral College for that purpose. Chaudhry successfully challenged Musharraf’s attempt to remove him.[427] But, just a few months later, anticipating an adverse Supreme Court judgment regarding an element of the Seventeenth Amendment allowing Musharraf to serve, simultaneously, as president and Chief of the Army Staff (COAS), Musharraf declared a state of emergency (November 2007). Suspending the Constitution and postponing elections scheduled for January 2008, Musharraf removed Chief Justice Chaudhry and several other judges from their posts.
Protests led by district lawyers subsequently prompted Musharraf to resign as COAS. And, following the assassination of Benazir Bhutto (December 2007), elections were finally held in February 2008. Led by Benazir Bhutto’s widower, Asif Ali Zardari, the PPP emerged from these elections as the leader of a ruling coalition alongside PML-N leader Nawaz Sharif, with both parties vowing to impeach Musharraf (still serving as president) and reinstate the judges he had sacked. Unfortunately, fearing that Chief Justice Chaudhry might revive a set of corruption cases targeting Zardari, the government proceeded with its impeachment campaign against Musharraf (prompting Musharraf to resign from the presidency in August 2008, after which Zardari was sworn in as president) without reinstating Chaudhry. This failure to reinstate Chief Justice Chaudhry, however,
led the PML-N to abandon the PPP-led governing coalition and support a further round of protests until Chaudhury was finally reinstated in March 2009.[428]
In an enduring push to shore up the power of Pakistan’s parliament after several years of military dictatorship, however, both the PPP and the PML-N came together in April 2010 to support Pakistan’s Eighteenth Amendment, which, as noted above, removed Article 58(2)(b) even as it enhanced parliament’s power vis-a-vis the appointment of judges (Article 175A). Steering clear of the Constitution’s “Islamic” features, however, the Eighteenth Amendment did not remove or substantially alter Article 62(1)(f).[429] In fact, even as it sought to restore key features of Pakistan’s 1973 Constitution, the final text appeared to accommodate an increasingly religious strand of public opinion.
Specifically, PML-N leader Nawaz Sharif and Islamist parties like the Jama’at-e-Islami positioned themselves as defenders of religious values, resisting any alteration of Zia’s ostensibly “Islamizing” amendments.[430] In short, the Eighteenth Amendment removed a threat posed by the discretionary powers of Pakistan’s president (Article 58(2) (b)) even as it retained a broadly “Islamic” threat tied to the power of the judiciary (Article 62(1)(f)).6.3.2 Political versus judicial power: “District Bar
Association Rawalpindi”
Mindful of the role that Pakistan’s Supreme Court had played in accepting earlier military coups,[431] as well as previous civilian efforts to massage the appointment of judges,[432] one key part of the Eighteenth Amendment sought to clarify parliament’s role in the appointment of both High Court and Supreme Court judges.[433] Specifically, Article 175A created a Judicial Commission with a mix of judicial and non-judicial members to prepare a list of nominees for consideration by an eight-member Parliamentary Committee.[434] This Parliamentary Committee was
Parliamentary piety in Pakistan 121 empowered to reject the Judicial Commission’s recommendations - citing reasons that were, nevertheless, justiciable.
Alongside a Twenty-First Amendment (2015) introducing time-limited military courts to try civilians accused of religious terrorism,[435] however, judicial concerns regarding this appointment process - and its implications for “judicial independence” - prompted the landmark basic-structure decision known as District Bar Association Rawalpindi (2015). As the Supreme Court pointed out, both the Eighteenth Amendment and the Twenty-First Amendment raised “a common.. question,” namely, “whether there are any limitations on the powers of the Parliament to amend the Constitution” and, faced with a challenge to the independence of the judiciary (read as a constitutional “salient feature”), “whether the Courts possess jurisdiction to strike down a constitutional amendment” (Page 10, Para 5; Page 78, Paras 67, 69).
Previously, the Supreme Court had responded to such questions with a definitive “no.”[436] But, in District Bar Association Rawalpindi, the Court began to modify this view.To understand the Court’s change of focus, it is necessary to revisit the preliminary short order known as Nadeem Ahmed (2010), which urged parliament to “reconsider” its approach to Article 175A by expanding the Judicial Commission with two further Supreme Court justices (thus creating an absolute Supreme Court majority). Issued unanimously by a full bench of the Supreme Court on 30 September 2010, Nadeem Ahmed was led by Chief Justice Chaudhry, who, according to one senior lawyer, was “at the peak of his powers” having just been reinstated with support from a nationwide grassroots protest movement.[437]
In fact, two of the retired Supreme Court chief justices I interviewed explained that, for nearly three days before its Nadeem Ahmed order, the Court seriously considered striking down Article 175A; but, instead, it returned to its traditional focus on parliament’s power of constitutional amendment and urged the parliament to avail its privileges under a special provision within the Eighteenth Amendment (Article 267A) allowing members to “reconsider” their work to remove any difficulties with a simple majority of both houses. In other words, the Court opted to avoid an annulment in favour of a staged approach - one that, according to both former chief justices, recognised (a) the importance of reinforcing parliamentary power after nearly ten years of dictatorship as well as (b) the broad parliamentary consensus underpinning the Eighteenth Amendment. If parliament had refused to heed the Court’s recommendations, however, both
chief justices suggested that Pakistan’s first-ever basic structure annulment was very much in play.
It is impossible to know whether this historical, political, and judicial push in the direction of basic structure jurisprudence, underpinned by a popular chief justice with an activist judicial personality (i.e.
Chief Justice Chaudhry), would have emerged without the momentum surrounding the 2007-9 Lawyers Movement. However, we do know that parliament’s Nineteenth Amendment accommodated the unanimous recommendation in Nadeem Ahmed, thus removing any need to nullify Article 175A when the Eighteenth Amendment was fully reviewed in District Bar Association Rawalpindi five years later. As Khurshid Ahmad from the Jama’at-e-Islami - another member of the Parliamentary Committee on Constitutional Reforms in 2010 - told me, “the tone and temper of the judiciary during that period, particularly [that of Chief] Justice Chaudhry, was such that we didn’t want a clash.” As a result, he explained, parliament simply “conceded.”[438]It is, in many ways, difficult to read this pivotal moment as a simple clash of institutions: legislature vs. judiciary. Politically, the case of Nadeem Ahmed that prepared the ground for District Bar Association Rawalpindi was clearly underpinned by a powerful pro-democracy protest movement - a movement focused not only on the authority and independence of the judiciary, but also, on the restoration of a charismatic chief justice. The politics, as such, were not merely principled; they were also highly personalised.
6.4