ISLAMABAD: A debate on whether the 1973 constitution has a basic structure that cannot be modified – even by parliament – resurfaced on Thursday as the Supreme Court decided that a full court with all 17 judges will hear not only challenges to the 21st Amendment, but will also club pending challenges to the 18th Amendment along with the current matter.

Both challenges revolve around the theory of a basic constitutional structure. In the case of the 18th Amendment, introduced by the PPP government, the petitions challenged the new procedure laid down for the appointment of superior court judges; whereas in the case of the 21st Amendment, it is the military courts set up to try ‘jet-black’ terrorists that are being challenged.

Past judgments indicate that the independence of the judiciary constitutes one of the basic and salient features of the Constitution, which even parliament cannot undo.

However, senior constitutional lawyer Aitzaz Ahsan, when asked to comment, told Dawn he believed that future generations were cleverer and more progressive and could not be bound on the pretext that the Constitution has an inviolable basic structure. He maintained that the Constitution was a living and evolving document.

On Thursday, Chief Justice Nasirul Mulk, who heads a three-judge Supreme Court bench hearing the Lahore High Court Bar Association’s (LHCBA) petition against the 21st amendment, recalled that the question raised in the challenges against the 18th Amendment also revolved around the same basic structure theory and said that the petitions maintained that these constitutional amendments were in violation of that theory.

Court, petitioners seek to settle debate around ‘basic structure’ of constitution

A final judgment in the 18th Amendment case has been pending with the Supreme Court for nearly four years, even though a full court headed by former chief justice Iftikhar Mohammad Chaudhry had issued an order on Oct 21, 2010 suggesting new guidelines in the method of appointing superior court judges under Article 175-A of the Constitution.

Following the order, parliament passed the 19th amendment, accepting nearly all the proposals suggested by the Supreme Court and incorporating them into the constitution.

“Do we really have a basic structure and if we do, then can amendments to the Constitution be touched by the courts or not,” asked the chief justice before deciding to send notices to Nadeem Ahmed and other parties who had challenged the 18th Amendment in the past.

He also recalled that the Judicial Commission – which appoints judges to the superior judiciary and is chaired by the chief justice himself – has twice been asked to change its rules. This cannot happen unless the challenges to the 18th Amendment reach a final conclusion.

But senior counsel Hamid Khan, who represents the LHCBA in the current case and was also lead counsel in the case against the 18th Amendment, asked the court to hear and decide both matters separately.

The court, however, decided that when replies are furnished on both the 18th and the 21st amendments, the matter will be referred to a full court to hear together. The full court will end the controversy by pronouncing once and for all whether the Constitution has a basic, inviolable structure or not.

On Thursday, when the court asked Attorney General (AG) Salman Aslam Butt and provincial law officers why they had not filed replies on the 21st Amendment, the AG explained asked for more time, saying that the petitions at hand involved factual aspects and certain issues that the government wanted to highlight. He also said that the federation would need more time to formulate replies to the petitions filed by the Pakistan Bar Council and the Supreme Court Bar Association (SCBA) as well.

Only Khyber Pakhtunkhwa (KP) Advocate General Abdul Latif Yousufazai submitted a reply in court.

During the hearing, the chief justice also mentioned the petition moved by Maulvi Iqbal Haider, where the petitioner had sought certain guidelines from the Supreme Court regarding the functioning of military courts.

Representing the SCBA, senior counsel Asma Jehangir requested the court to deal with the Maulvi Haider case separately. The matter will again be taken up on Feb 24 and all parties have to file concise statements before the next hearing.

Published in Dawn February 13th , 2015

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