Essential features: From ‘District Bar Association Rawalpindi' to Islam

The decision in District Bar Association Rawalpindi ran to more than 900 pages. Four Supreme Court justices stressed the presence of Articles 239(5) and 239(6) and maintained that there was no constraint whatsoever on parliament's power to amend Pakistan's constitution: in short, neither the Eighteenth nor the Nineteenth Amendment (nor the Twenty-First) could be struck down.^[439] In fact, responding to those who asked whether parliament could go so far as to amend “constitutional provisions regarding [an] Islamic way of life and Islam being the State religion,” Justice Asif Saeed Khosa wrote that “Islam is not just...

Parliamentary piety in Pakistan 123 noted, “the will of the people will have its way and the aspirations of yore.. may not be able to shackle it” (Para 6).

Still, others embraced a new approach. Justice Jawwad S. Khwaja, for instance, noted that while Articles 239(5) and 239(6) might oust the “courts” from any review of duly promulgated amendments, they did not prevent the country's highest court, that is, the Supreme Court, from defending the constitution's “basic structure” (Para 18). In fact, rejecting the Court's history of deference to parliament's power of constitutional amendment, Justices Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, and Dost Muhammad Khan built on Khwaja's view to support an annulment of the Eighteenth Amendment, the Twenty-First Amendment, or both. Justices Ejaz Afzal Khan and Ijaz Ahmed Chaudhry were particularly keen to stress the “Islamic” underpinnings of Pakistan's constitutional basic structure.^[440]

In the end, however, eight justices speaking for the Court's majority sought to carve out a certain middle ground. While recognising the Court's power to annul amendments that appeared to conflict with the constitution's salient features, they chose to uphold the Eighteenth/Nineteenth and Twenty-First Amendments as duly promulgated changes that were consistent with the constitution's salient features: “Parliament, in view of Articles 238 and 239, is vested with the power to amend the Constitution as long as the Salient Features of the Constitution are not repealed, abrogated, or substantively altered,” they noted.^[441] But, hav­ing said this, they stressed that the Court was still empowered “to examine.

Before District Bar Association Rawalpindi (2015), a majority within the Court had never favoured striking down a duly promulgated constitutional amendment. But in 2015 this changed, prompting numerous questions regarding future con­stitutional amendments - including those touching on Islamic provisions. If, in keeping with the constituent powers and procedures outlined in Article 239(5) and 239(6), Pakistan's parliament were to move beyond the realm of “judicial independence” (Article 175A) to consider an amendment touching on “Islamic provisions” (Article 62(1)(f)), would Pakistan's post-2015 Supreme Court con­sider nullifying that amendment as an essential-features violation of the constitu­tion's parliamentary form of government “blended with Islamic provisions”?

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