17-Member Bench of Pakistan SC to decide if Parliament can amend Constitution which disturbs its “basic structure”

The Supreme Court of Pakistan on Friday reserved judgment in a case challenging the 18^th and 21^st amendments of the Constitution which relate to the procedure regarding appointment of judges and the formation of military courts for the trial of militants respectively.

A 17-member Full bench of the Pakistan Supreme Court led by Chief Justice Nasirul Mulk heard the case and reserved its verdict after completion of arguments by government lawyers.

The case pertained to the setting up of military courts by the Pakistan Government through the 21st constitutional amendment in January 2015 for the speedy trial of terrorists in the aftermath of the deadly Peshawar school massacre by the Taliban that killed 150 people, mostly children.

The amendment was challenged in the apex court on the ground of violation of fundamental rights as embodied in Pakistan’s constitution.

The court also heard the challenge to the appointment of judges through the 18^th amendment by the parliament.

Earlier, Attorney General Salman Aslam Butt contended that while the judiciary has the prerogative of defining the Constitution, it cannot declare null and void a constitutional amendment or law with the single stroke of a pen.

Advocate generals of the federal capital and all four provinces, representatives of Pakistan Bar Council, including Asma Jahangir, Ibrar Hasan and Khalid Anwer, also completed their arguments.

On the occasion, the advocate generals endorsed the arguments of the attorney general placed before the court.

The apex court will decide whether it has the power to set aside constitutional amendments duly approved by the parliament.

The Supreme Court of Pakistan will also decide if the parliament could approve any change in the constitution which disturbs its “basic structure” that guarantees a federal set up, dichotomy of powers and fundamental rights.

The nine military courts are already functional and have awarded death sentence to at least six militants.

The political spin-off of any decision nullifying the setting up of military courts will be that it would be considered a blow to the esteem of the military, a powerful player in Pakistan politics.

The developments in Pakistan come even as the Supreme Court of India is hearing a challenge to the Constitutional Amendment enabling the constitution of a National Judicial Appointments Commission which has been challenged, among other grounds, as an attack by the Executive and Parliament on the independence of the judiciary which has been judicially recognized as part of the basic structure of the Constitution. The basic structure doctrine was recognized in India pursuant to the decision of the Apex Court in the celebrated Kesavananda Bharati case.

The verdict of the Pakistan Supreme Court is therefore expected to be keenly awaited and watched by members of the legal fraternity even in India.