ISLAMABAD: Can parliament make fundamental changes in the basic characteristics of the Constitution like replacing Islam being a state religion as stated in Article 2 with secularism. This was the centre of Monday’s hearing on challenges to the 18th Amendment on which the Supreme Court ventured around to find answers.

“What will be the mode if a popular demand but not a revolution asks for changing the basic structure of the Constitution to secularism from Islam,” Chief Justice Nasir-ul-Mulk wondered and asked could it be done by the present parliament or a constituent assembly would be needed.

Also read: SC judge says Constitution has concept of basic structure

A 17-judge full court headed by the chief justice had taken up a set of petitions challenging the procedure for appointment of superior court judges under the 18th Amendment and establishment of military courts under the 21st Amendment to try hardened terrorists.

“Can a political party with unequivocal support in its manifesto to secularism, if given vast majority by the people, still be entitled to change the Constitution,” asked Justice Main Saqib Nisar, one of the members of the bench.

“Not without a referendum,” said senior counsel Hamid Khan, representing at least three district bar associations which had challenged the amendment. The salient feature of the Constitution that recognises Islam as a grundnorm (fundamental norm) is not open to changes.

The debate on secularism started when Justice Asif Saeed Khosa, while sharing his thoughts, observed that Pakistan had been created in 1947 in the name of Islam and it was declared that Islam would be the state religion. But soon after a majority population from East Pakistan who were the most vocal in voting for the religion broke away and carved a new state called Bangladesh and framed a new constitution by changing its basic feature to be secular.

Even when Bangladesh’s former president Gen Hussain Mohammad Ershad tried to change the basic feature to Islam, it was challenged and struck down by the Supreme Court of that country, Justice Khosa reminded in a bid to establish that outlook and perception of the people changed with the passage of time. Even China with a monarchy rose to a different ideology like Turkey where even Islamic practices were not allowed after the Ottoman Empire collapsed.

Hamid Khan argued that only a constituent assembly could make changes in the Constitution.

But Justice Nisar asked him to shed light on how the constituent assembly was constituted; whether it could only be done through a revolution by annulling the present parliament and whether all the future generations could be made hostage to what the constituent assembly determined.

Justice Jawwad S. Khawaja reminded that Bangladesh or Turkey never saw revolutions.

Mr Khan said there was a consistent consensus in Pakistan that Islam should be state religion, adding that when the objective resolution had been adopted by the constituent assembly in 1949, it was supported by all Muslim members but vehemently opposed by non-Muslim members.

The counsel referred to the Oct 21, 2010, short order in the 18th Amendment case to establish that the apex court did consider what would be the possible basic structure.

But Justice Nisar reminded him that the short order was simply a tentative observation which would merge into the final judgment. “It is like a speech,” Justice Nisar observed and said nothing hinged upon the short order.

But the counsel preferred to say it as an interim order on the basis of certain reasoning and emphasised that prima facie the short order was in favour of the basic structure of the Constitution.

But the chief justice reminded him that the Supreme Court had referred the 18th Amendment back to parliament. “The basic structure theory was never accepted by the court and while referring the matter back to the parliament it acknowledged the supremacy of parliament,” he observed.

Hamid Khan argued that parliament could make amendments. This was the rule and he was not in favour of tampering with the constitutional amendments unless it violated the basic structure of the Constitution, he said.

Justice Khosa said that the thing which bothered him was how judges could strike down an amendment when the Constitution, of which they had taken oath, said nothing about this.

“Can an imported academic theory from Germany confer the power on the judges to strike down the amendment,” Justice Khosa asked. “We never spare the executive or the legislature when they overstep their authority and equate them with criminals but ask the judges to take a lenient or liberal view in interpreting the Constitution only to assume the authority to strike down the amendment which was never given to them by the Constitution,” he observed.

Justice Khawaja said the Constitution provided a textual support in this regard.

But Justice Nisar intervened and sought the counsel’s assistance to show such a support. It gave only a conceptual support and not textual, the judge clarified.

Justice Sheikh Azmat Saeed conceded that the constitutional amendment could not be challenged in courts but the most bothering thing was whether in the garb of the amendment, the Constitution could be destroyed or not.

Published in Dawn, May 5th, 2015

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