Introduction
Notwithstanding extensive engagement with so-called “basic structure” jurisprudence, which the Supreme Court of India has used to strike down constitutional amendments seen as violating the essential features or implied basic structure of India's Constitution, the Supreme Court of Pakistan has never struck down any constitutional amendment duly promulgated by parliament.
This chapter nevertheless considers an emerging debate regarding the possibility of unconstitutional constitutional amendments (UCA) in Pakistan. Focusing on what the Supreme Court of Pakistan has called the “salient” features of Pakistan's Constitution, with particular reference to underpinning Islamic features, this debate has divided politicians and judges alike.Among politicians, one strain of this debate has focused on a constitutional clause known as Article 62(1)(f). Part of an omnibus constitutional amendment known as the Eighth Amendment - introduced in 1985 by a parliament convened under Pakistan's third military dictator, General Zia-ul-Haq - this clause outlines some of the standards qualifying individuals to stand for election and serve as parliamentarians. Inter alia, it requires such individuals to remain ameen or trustworthy in a religious (Qur'anic) sense.[404] A July 2017 Pakistan Supreme Court decision disqualifying Prime Minister Nawaz Sharif for failing to qualify as ameen, however, reignited a debate about the possibility of removing what some described as a link between “vague” Islamic norms and eligibility for parliamentary election.[405] Today, cross-party support for repealing Article 62(1)(f) is strong.
At the same time, turning to the judicial side of the debate, a number of questions have emerged regarding the limits of parliament's amending powers. These questions have intensified since an August 2015 Supreme Court judgment known as District Bar Association Rawalpindi v Federation of Pakistan.[406] This judgment did not strike down any constitutional amendments; it actually upheld Pakistan's Eighteenth, Nineteenth, and Twenty-First Amendments.
But, for the first time ever, a Supreme Court majority held that any duly promulgated constitutional amendment seen as violating the salient features or basic structure of Pakistan’s Constitution could and should be annulled. (In previous judgments, this was a minority view. And, in District Bar Association, the majority found no specific violation.) Inter alia, building on several previous judgments, the Supreme Court cited Pakistan’s “parliamentary form of government blended with Islamic provisions” as an unamendable salient feature of Pakistan’s constitution. It may be that this reference linking a “parliamentary” form of government to “Islamic” provisions could limit the future amendability of Article 62(1)(f).With respect to parliament’s power of constitutional amendment, including amendments touching on Article 62(1 )(f), the tussle between parliamentarians and judges has been particularly fraught since one portion of Pakistan’s Eighteenth Amendment, known as Article 175A, sought to shift control over the appointment of superior-court judges - that is, both Supreme Court and provincial High Court judges - from the superior judiciary to parliament. Just six months after the Eighteenth Amendment was promulgated in April 2010, however, a preliminary Supreme Court short order known as Nadeem Ahmed v Federation of Pakistan responded to Article 175A, citing “judicial independence” with respect to judicial appointments as yet another unamendable salient feature of the constitution.[407] This in turn led the country’s parliament to “reconsider” its approach to Article 175A with a further amendment - Pakistan’s Nineteenth Amendment - restoring a leading role for the Supreme Court vis-a-vis all superior-court appointments. As such, there was no practical need for the Supreme Court to strike down parliament’s initial approach to Article 175A when its full judgment (District Bar Association Rawalpindi 2015) was issued five years later.
In effect, the Supreme Court of Pakistan has used its articulation of (unamendable) constitutional “salient features” to craft an understanding in which (a) judges are empowered to assess the Qur’anic qualifications of individual parliamentarians (Eighth Amendment: Article 62(1)(f)) even as (b) parliamentarians are not empowered to assess the qualifications of individual judges (Eighteenth/ Nineteenth Amendments: Article 175A).
This understanding of the constitution’s salient features - "judicial independence” on the one hand; a “parliamentary form of government blended with Islamic provisions” on the other - has, in many ways, clarified the institutional underpinnings of an ongoing debate regarding the religious parameters of parliamentary democracy in Pakistan.If, responding to the disqualification of Prime Minister Nawaz Sharif and several other politicians described as insufficiently ameen, Pakistani politicians were to amend or repeal Article 62(1)(f), would Pakistan’s Supreme Court intervene to annul that amendment as a salient-feature violation of Pakistan’s “parliamentary form of government blended with Islamic provisions”? In what follows I combine the historical, political, and judicial elements of this question with a small set
Parliamentary piety in Pakistan 113 of interviews targeting senior political and judicial figures to illuminate the link between globally familiar forms of basic-structure jurisprudence and emerging debates regarding the parameters of Islamic constitutionalism in Pakistan.
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