“Islamic” constraints on parliament’s amending power?

Decades before, in the case of '/.ta-ur-Rabman (1973), Pakistan Supreme Court Chief Justice Hamood-ur-Rahman noted that preambular references to Islam in Pakistan’s Objectives Resolution could not be used to test other parts of the con­stitution.

Still, this high court push for a “proscriptive” basic structure reading of Article 2A rooted in references to the “sovereignty” of Allah and the “limits” prescribed by Him invariably failed in the Supreme Court. In Hakim Khan v Government of Pakistan (1992), for instance, the Supreme Court considered Pakistan’s Qisas and Diyat Ordinance (1990), which provided for an “Islamic” approach to ret­ribution in cases of physical injury as well as monetary compensation for mur- der.^[445] In Islamic law, those who suffer injury, in addition to the heirs of murder victims, are empowered to pardon offenders. But in Pakistan, some argued that Article 45 of the Constitution, which gave the president unlimited powers of pardon, cut against Article 2A’s references to injunctions “set out in the Holy Qur’an and Sunnah.” In fact, pointing to a possible clash between Article 45 and Article 2A, some argued that Article 45 should be annulled.

Indeed, the same view resurfaced with reference to Article 58(2)(b). As alle­gations emerged that military elites and opposition parties had conspired with various presidents to bring down elected governments rather than waiting for fresh elections in 1988, 1990, 1993, and 1996, the dissolution of Prime Minister Bhutto’s second government by President Farooq Leghari in 1996 was chal­lenged in a basic structure case known as Mahmood Khan Achakzai v Federation of Pakistan (1997).^[446] This case looked beyond the president’s discretionary actions under Article 58(2)(b) to consider the constitutionality of the Eighth Amendment as a whole. Specifically, it examined the degree to which a focus on

Parliamentary piety in Pakistan 125 “presidential” powers in Article 58(2)(b) might be seen as a distortion of Article 2A’s description of the Constitution’s “parliamentary” basic structure.

Still, Supreme Court Chief Justice Sajjad Ali Shah returned to the reasoning articulated by Justice Nasim Hasan Shah in Hakim Khan. Dismissing the case, the Chief Justice noted that, although Article 2A “when read with other provi­sions” could be said to reflect “salient features” of the constitution - including (for the first time) “[a] parliamentary form of government blended with Islamic provisions” - Article 58(2)(b) also gave certain powers to the president as a mat­ter of “checks and balances” (ostensibly, “to forestall a situation in which martial law could be imposed”).^[447] In fact, Shah read both Article 2A and Article 58(2)(b) as amendments duly promulgated by parliament that could not be struck down precisely insofar as their mix of parliamentary, presidential, and religious checks and balances did not irredeemably alter “a parliamentary form of government blended with Islamic provisions” (Para 27).

In short, there was no indication during the late 1980s, 1990s, or 2000s that Pakistan’s Supreme Court might nullify a duly promulgated constitutional amend­ment as an essential-features or basic-structure violation rooted in the Islamic fea­tures of Article 2A (or, for that matter, any other Islamic provision). Departing from the Court’s traditional deference to parliament’s amending power, that step emerged in conjunction with a series of cases tied to the “Islamic” features of Article 62(1)(f).

6.5.1 Debating Article 62(1)(f): Judges versus parliamentarians

Embracing a broad interpretation of Article 62(1 )(f), some judges sought to frame a rather expansive sense of the requirement that parliamentarians must be “ameen.” But, while agreeing that such religious terms were obscure, vague, or subjective (Ishaq Khan Khakwani v Mian Nawaz Sharif PLD 2015 SC 275),^[448] the Supreme Court generally saw fit to disqualify parliamentarians found guilty by a court of dishonesty.^[449] In fact, politicians from all major parties were disqualified

for bogus academic credentials, false declarations regarding their dual citizenship, and so on.

The most important case, by far, was Imran Ahmed Khan Niazi v Mian Muhammad Nawaz Sharif (2017), which removed Prime Minister Nawaz Sharif for withholding information in an application to stand for re-election - informa­tion regarding unaccrued payments (read as an “asset”) for his service as the chairman of a Dubai-based company owned by his son. Already, a related judg­ment regarding unclear funding for four flats with a rather complex ownership structure in London had cited an expanding body of caselaw treating legal evi­dence of dishonesty as a breach of Article 62(1)(f).^[450] But, even then, the pre­cise meaning of “ameen” remained unspecified.

Justice Azmat Saeed responded that the Court should not “arrogation [sic.] unto itself the power to vet candidates on moral grounds” (Para 37) - a view he reiterated in a related judgment known as Sami Ullah Baloch v Abdul Karim Nowsherwani (2018),^[453] wherein he argued that the constitutionally unspeci­fied duration of any Article 62(1)(f) disqualification should be clarified, not by the Court, but by parliamentarians. Overall, however, the Court's majority in Sami Ullah Baloch disagreed. The majority returned to Khosa's claim that, in the absence of any amendment clarifying the duration of Article 62(1)(f) disqualifica­tions, the judiciary was compelled to intervene. In particular, returning to Islamic standards rooted in the Qur'an and sunnah (Paras 3, 14-19), the Court built on several prior cases to declare that a ban for “illegal” dishonesty was permanent so long as the judgment finding that dishonesty remained in place (Para 23). “If at all the period of embargo... is to be relaxed,” noted Justice Umar Ata Bandial, writing for the majority, this would follow “only from a Constitutional amend­ment by the Parliament” (Para 3).

In short, parliament was empowered to amend the Constitution, includ­ing Article 62(1)(f). But, until it exercised that power, the Court was obliged to define the constitutional meaning of terms like ameen and, then, to define the duration of any disqualification for those judged “not ameen” within the

Parliamentary piety in Pakistan 127 (Qur'anic) parameters set by the Court.

“There is no cavil with the fact that Article 62(1 )(f)—introduced by a dictator—should be repealed/amended,” noted Saad Rasool (2018), “because it holds the possibility of becoming a tool for moral witch-hunts.” Still, Rasool felt that any repeal should be treated as “a choice [for the].. legislature.”^[455] And, yet, with Article 62(1)(f) increasingly tied to the Islamic elements of a constitu­tional basic structure that was, itself, tied to “a parliamentary form of govern­ment blended with Islamic provisions,” one might reasonably ask: was a repeal of Article 62(1)(f) really an option for the legislature?

6.5.2 Debating Article 62(1)(f): Parliamentarians versus parliamentarians

By 2018, the cases of District Bar Association Rawalpindi, Imran Ahmed Khan Niazi, and Sami Ullah Baloch had revitalised an important debate regarding the degree to which Pakistani parliamentarians were empowered to promulgate amendments touching on Islamic provisions - specifically, provisions concerning the Qur'anic qualifications of individual parliamentarians as a marker of Pakistan's parliamentary form of government “blended with Islamic provisions.”

With headlines like “[PML-N] Government Reveals Plans to Amend Articles 62, 63” (2017) and “[PML-N] PM Abbasi Hints at Scrapping 62(1 )(f) with Help of Political Parties” (2017), it is clear that, although initial efforts to repeal Article 62(1)(f) were rebuffed by the PML-N during parliamentary debates sur­rounding the Eighteenth Amendment, such a step was still under discussion even within the PML-N.^[456]

During an October 2020 interview with PPP Senator Raza Rabbani, the Chairman of the Committee on Constitutional Reforms that formulated Pakistan's Eighteenth Amendment (2010), I was told that, with respect to Article 62(1) (f), the Committee initially faced “resistance from the PML-N and... Islamist parties.”^[457] But “now...

misuse... [of] this provision.” In fact, referring to “the overall tone and tenor” of ongoing efforts to promote greater accountability for individual parliamentarians in Pakistan, Rabbani felt that current trends would produce “[an] amendment in that [provision].”

Former Jama’at-e-Islami Senator Khurshid Ahmed, however, disagreed. Ahmed did not see any interest in repealing Article 62(1 )(f) at all. “[I]t was introduced in the Eighth Amendment.. and with great debate it was retained in the Eighteenth Amendment,” he noted, “and now it has the support of all the parties.” Even the secular Pashtun-nationalist Awami National Party, which initially “opposed it,” he added,^[458] “they [have] also accepted it, so now it is a unanimous part of the constitution”.” “It is,” he stressed, “an integral part of the Islamic rules of the constitution.”

Indeed, former Council of Islamic Ideology Chairman and ad hoc Shariat Appellate Bench member Khalid Masud agreed that Pakistan’s religious par­ties would “not ally with other political parties to amend this... provision.”^[459] “Opening this box,” he explained, could “mean repealing the whole Islamization process” associated with General Zia. And, politically, he argued, “I do not believe this article would be amended,” even if, broadly speaking, the Supreme Court “would not and should not annul a constitutional... amendment.” In short, Masud argued, the barriers to repeal were neither constitutional nor judi­cial, but political.

Everyone I interviewed expected the level of support for repealing Article 62(1 )(f) to falter among religious activists. In fact, returning to the views of Senator Ahmed, all felt that, if a constitutional amendment were introduced to remove the word ameen, street protests led by religious activists would follow. Some religious parties “just want. an excuse to come out in protest,” noted one retired Supreme Court Chief Justice, adding that an amendment targeting Article 62(1)(f) would almost certainly amount to “a very good excuse.” In fact, Ahmed himself confirmed this, noting that, if parliament took steps to repeal Article 62(1)(f), he would expect “an uproar.” “[The] Qur’an says it in clear terms: give your authority. to people who are honest,” he noted. “Politicians cannot say anything... against [the Holy] Qur’an.”

Still, only Ahmed felt that religious protests would (or should) deter specific constitutional reform efforts initiated by parliamentarians. Protests can be “awk­ward, even for semi-secular parties [like the PPP],” noted Senator Rabbani. But, in the end, he felt, such protests would not be “fatal” for any legislative majority.

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6.5.3 Debating Article 62(1)(f): Principles versus personalities

If a repeal of Article 62(1 )(f) were supported by most parliamentarians while remaining broadly unobjectionable to most voters, however, there is still a chance that such a repeal might fail at the hands of Supreme Court justices concerned about their relative authority vis-a-vis individual parliamentarians. Indeed, this institutional tussle might be cast as an “essential-features” problem focused on the judiciary's power to defend the Constitution’s “parliamentary form of gov­ernment blended with Islamic provisions.”

Recalling views articulated by Syed Abul ala Maududi and Muhammad Asad targeting Pakistan’s first Constituent Assembly,^[460] this position was clearly expressed by Senator Ahmed: “If anything has been done which violates the con­stitution, then [the] judiciary has a right to rule on [it],” he noted. “[P]arliament has powers,” he clarified, but “even the parliament cannot legislate against the Qur’an and sunnah.” Pakistan has “[a] democratic constitution,” he argued, but “not absolutely as in the other secular democratic constitutions.” Indeed, return­ing to Pakistan’s first Constituent Assembly, he echoed the views of Abdulla al-Mahmood, who favoured a “religious” check on parliament’s power vis-a-vis the Constitution.

Returning to a plain reading of Articles 239(5) and 239(6), however, Senator Rabbani disagreed. “I have a lot of questions [about] the essential features doc­trine,” he said. “I believe.. parliament is sovereign,” and “parliament can amend the constitution in whatever manner... it wants.” “I’m sure... there may be ordinary citizens or other vested interests who would put in an appeal challeng­ing [an amendment repealing Article 62(1)(f)],” so the Supreme Court “may examine [that] on the touchstone of the constitution and the general atmosphere [favouring] accountability [for individual parliamentarians].” But, in the end, Rabbani did not believe there would be “much of a fuss... from the Court.” “[M]ore than the Supreme Court,” he felt, resistance to any repeal of Article 62(1)(f) “may come from the... [military] establishment.” After all, he noted, Article 62(1)(f) was introduced by a parliament acting at the behest of General Zia to be “as ambiguous as possible,” so as to “serve as. a tool for allowing or disallowing the candidature of any one whom [the establishment might see as] working against... their ideology.”

Faced with a constitutional amendment repealing Article 62(1)(f), however, none of those I interviewed felt that the work of Pakistan’s Supreme Court would be shaped by core constitutional principles referring to broad institutional priori­ties, including parliamentary sovereignty (Articles 239-5 and 239-6). In particu­lar, they argued, earlier patterns of judicial deference to parliamentary authority vis-a-vis constitutional amendments could no longer be taken for granted; instead, all focused on the case of former Chief Justice Muhammad Iftikhar Chaudhry and stressed that any future reference to basic-structure jurisprudence would depend

on the personality of the chief justice: “I think the personality [of the Chief Justice will] matter,” noted one of the former Supreme Court chief justices I interviewed. Whereas basic-structure jurisprudence elsewhere in the world might be tied to stable constitutional principles or broad institutional priorities, in other words, my respondents felt that relevant patterns in Pakistan were now more closely tied to historically specific personalities and the politically contingent pat­terns of judicial activism (or reticence) attached to them.

“Judicial activism is very much there,” noted Senator Rabbani. “But... it has had its ups and downs.” In particular, he added, “it... depends upon the tem­perament of the chief justice.” “Obviously, nobody would like to see a waning of their [institutional] power,” Rabbani added. But “the degree varies [with each chief justice].” Or, as Senator Ahmed noted, “the whole trend is towards judi­cial activism... [and Chief Justice] Saqib Nisar... and Iftikhar Chaudhry, they were sometimes overstepping.” But even so, he stressed, it always depends on the views of individual jurists. “Every judge is independent,” noted one former chief justice. So “it depends on... who are the judges at that particular time.” Specifically, noted another former chief justice, “the judiciary... has become [more] assertive” since “Chaudhry.” So “I think... there may be a [broader] change.” “The past pattern” of judicial deference “may not continue,” he added, not only with respect to military regimes, but also with respect to civilian regimes and even “hybrid” civilian-military regimes like that of Prime Minister Imran Khan. Still, he concluded, echoing the views of both Rabbani and Ahmed, “a lot depends on the composition of the bench.” “When it comes to religious issues [in particular],” he argued, it “depends on individual judges.”

Focusing on the intersection of basic-structure jurisprudence and religious issues, these comments reiterate the special link between two key salient features, namely “judicial independence” as this relates to judicial appointments and, then, Pakistan’s “parliamentary form of government blended with Islamic provisions.” The institutional politics, however, are often highly personal. Who controls who sits on the courts? Which judges determine which parliamentarians are “ameen”?

6.6