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 Despite the dark clouds, there is still optimism that the main pillars of State in Pakistan will function in harmony for the good of democracy and welfare of the people.
The politicians, the civil society and the legal fraternity in Pakistan repeatedly demanded the restoration of the 1973 Constitution. The major political parties highlighted this quest through signing of Charter of Democracy. The 18th Amendment repealed the distortions like the Legal Framework Order, 2002, and the Seventeenth Amendment, besides adding Article 175A which introduced a procedure for appointment of superior Courts Judges. This change and some other provisions have been challenged before the Supreme Court mainly on the ground that these offend the basic structure of the Constitution and independence of judiciary.
The larger bench of the apex Court is seized of the question of the validity of the 18th Amendment. This case has already been designated as important. The proposition, however, does not create a conundrum in view of Article 239 (5) and (6) of the Constitution, the jurisprudence on the subject and the principle of tracheotomy of power adopted by the Constitution. Relevant portions of Article 239 (5) and (6) read: "(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever. (6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution."
Inter alia, the questions needing determination are: (a) whether the 18th Amendment offends the basic structure of the Constitution; (b) whether the proceedings conducted in-camera by the Parliamentary Committee was a correct methodology; (c) the scope of amending powers of the Parliament under Article 239 of the Constitution; (d) whether any of the provisions of 18th Amendment offend the Constitutional fundamental rights; (e) whether the procedure prescribed for appointment of Judges was un-constitutional; (f) whether the Amendment offends the provisions of Article 2A reflecting the Objective Resolution.
The 1973 Constitution defines the judicial powers in its Article 175 and Article 184(3) and prescribes the original jurisdiction of the Supreme Court and is akin to Art. 142 (1) of the Indian Constitution. Both these Articles are to be read in harmony. Article 175-A is a product of the 18th Amendment and prescribes a procedure for judicial appointments through a Commission.
The basic structure doctrine which was developed since Golaknath ruling of the Indian Supreme Court (1967) cannot be made applicable to the Constitution of Pakistan. In this connection we have to be guided by the Pakistani jurisprudence as developed after the case of Mahmood Khan Achakzai [PLD 1997 SC 426]. Regarding the Objective Resolution which is not executable nor it overwhelms any other provision (Article 2A) we have to be guided by the jurisprudence laid in the case of Hakim Khan [PLD 1992 SC 595].
In the matter of Amendment of the Constitution and exercise of judicial powers by the apex Court reference is being made to the 39th Amendment of the Indian Constitution which amended Article 329/A (4) (5). In case of Indira Gandhi [AIR 1975 SC 2299] where this was challenged it was observed: "Clause (4) of Article 329-A is liable to be struck down on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution..."
The 39th Amendment to Indian Constitution cannot be compared with the provisions of the 18th Amendment of the 1973 Constitution of Pakistan both having different sweeps, purposes and characteristics. The most contentious provision of the 18th Amendment relates to the appointment of Judges through a Judicial Commission and Parliamentary Committee. We have similar examples from Great Britain and South Africa. In the U.S.A. the Senate plays the most important role in this connection. India also aspired for such a Commission. The bill for amendment of the Constitution was presented to the 9th Lok Sabha but because of dissolution of the Lok Sabha the bill lapsed.
The Judicial Commission is to be headed by the Chief Justice of Pakistan and is to include his two senior peers and others to recommend names of persons to be appointed as Judges in the Supreme Court and with modulations for the High Court appointments. After the exercise, the selected names are to be passed on to the Parliamentary Committee instead of the Prime Minister for forwarding to the President. The service of Judges remains protected as before. The judiciary shall keep its independence. These procedural provisions do not seem un-constitutional as these do not offend any of the fundamental right of the citizens. Besides, these provisions are yet to be put to a test in real life.
When we talk of the judicial review in the context of the Constitution we are to be guided by the cases of (1) Abdul Wali Khan [PLD 1976 SC 57] (2) Wukala Mahaz Barai Tahafaz Dastoor [PLD 1998 SC 1963] and (3) Pakistan Lawyers Forum [PLD 2005 SC 719].
In the case of Abdul Wali Khan which followed the principle of Kesvavanda Bharati [AIR 1973 SC 1467] the ratio laid by the Supreme Court was: "It is unnecessary for us to enter into this controversy, as this Court is committed to the view that the ‘the judiciary cannot declare any provision of the Constitution to be invalid or repugnant' to the national aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to that prescribed by the Constitution"
In the case of Pakistan Lawyers Forum it was the law laid by the Supreme Court: "The conclusion which emerges from the above survey is that prior to Syed Zafar Ali Shah's case, there was almost three decades of settled law to the effect that even though there were certain salient features of the Constitution, no Constitutional amendment could be struck down by the superior judiciary as being violative of those features. The remedy lay in the political and not the judicial process..."
On holding of Parliamentary Committee meetings in camera there is nothing new about it. Writing about the story of the U.S. Constitution Charles McC. Mathias Jr., a U.S. Senator informs us about the proceedings of the Constitution Convention of 1787 at Philadelphia: "The proceedings of the Convention were kept in strict secrecy to prevent the newspapers and the public from engaging in wild speculation. However, copious notes kept by James Madison provide out best insight into the debates."
It is also said that the present Parliament was not a Constituent Assembly and, therefore, could not amend the Constitution. In this connection we may refer to the provisions of Article 239 which takes care of Constitutional amendments to be made by the Parliament at all times. The Parliament that made the 1973 Constitution was not originally designed as a Constituent Assembly. In fact, the great Constitutional Convention of the U.S.A. did not begin as a constitutional convention at all. Rather, it was the outgrowth of several earlier gatherings of much more modest aspirations.
Abraham Lincoln in 1861 in his first inaugural address while speaking of the Parliament-Courts relationship said: "The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, ... the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal ..."
As far as judicial creativity in the case of a statute is concerned there is no difficulty, the touchstone being the Constitution. But a difficulty arises when the matter relates to the provisions of the Constitution itself. We have therefore to see how the apex Court which is itself a creature of the Constitution (Zia ur Rahman's case PLD 1973 SC 49) will articulate in such a situation. I do remain optimistic and hopeful that the main pillars of the State will function in harmony for the good of the democracy and governance helping the State to focus on the basic issues of poverty, terrorism and welfare of the people. I am also hopeful that the Government will successfully meet these challenges with the support of the people. 
Ali Nawaz Chowhan is a former International Judge of the United Nations at The Hague, Permanent Judge of the Lahore High Court and is presently Co-Chairman of the UNESCO Appeal (Judicial) Board in France.
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