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Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion

Published online by Cambridge University Press:  03 December 2018

Matthew J NELSON Open the ORCID record for Matthew J NELSON [Opens in a new window]
Matthew J NELSON*
Affiliation:
School of Oriental and African Studies, University of London, United [email protected]
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Abstract

In both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam.

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Article
Information
Asian Journal of Comparative Law , Volume 13 , Issue 2 , December 2018 , pp. 333 - 357
Copyright
© National University of Singapore, 2018 

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Footnotes

*

Reader, Department of Politics, School of Oriental and African Studies. The author wishes to thank the Centre for Asian Legal Studies at the Faculty of Law, National University of Singapore, for funding this project.

References

1. For explicit substantive unamendability, see Roznai, Yaniv, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017) 15–38Google Scholar, 235–74.

2. ibid; Roznai, Yaniv, ‘Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea’ (2013) 61(3) American Journal of Comparative Law 657CrossRefGoogle Scholar. See also Albert, Richard, ‘Nonconstitutional Amendments’ (2009) 22(1) Canadian Journal of Law and Jurisprudence 5CrossRefGoogle Scholar; Barak, Aharon, ‘Unconstitutional Constitutional Amendments’ (2011) 44(3) Israel Law Review 321CrossRefGoogle Scholar.

3. See eg Kesavananda Bharati Sripadagalvaru v State of Kerala, AIR 1973 SC 1461 (Supreme Court of India).

4. See Roznai, Unconstitutional Constitutional Amendments (n 1) 49–52; Newberg, Paula R, Judging the State: Courts and Constitutional Politics in Pakistan (CUP 1995) 237–241, 243–44CrossRefGoogle Scholar; Lau, Martin, The Role of Islam in the Legal System of Pakistan (Brill 2006) 81–88CrossRefGoogle Scholar. For related work on the migration (and transformation) of constitutional ideas, see Rosenfeld, Michel and Sajó, András, ‘Spreading Liberal Constitutionalism: An Inquiry into the Fate of Free Speech Rights in New Democracies’ in Sujit Choudhry (ed), The Migration of Constitutional Ideas (CUP 2006) 142Google Scholar; Nelson, Matthew, ‘Constitutional Migration and the Meaning of Religious Freedom: From Ireland and India to the Islamic Republic of Pakistan’ Journal of Asian Studies (forthcoming 2019)Google Scholar.

5. See also Krishnamurthy, Vivek, ‘Colonial Cousins: Explaining India and Canada’s Unwritten Constitutional Principles’ (2009) 34(1) Yale Journal of International Law 207Google Scholar.

6. In the first Constitution of the Islamic Republic of Pakistan 1956 (1956 Constitution), art 216 provided that constitutional amendments duly promulgated by parliament ‘shall not be questioned in any court’. This clause was removed in the second Constitution of the (re-named) Republic of Pakistan 1962 (1962 Constitution) as well as the third Constitution of the (again re-named) Islamic Republic of Pakistan 1973 (1973 Constitution). Arts 239(5) and 239(6) were added to the 1973 Constitution in 1985.

7. See District Bar Association, Rawalpindi v Federation of Pakistan, PLD 2015 SC 401 (Supreme Court of Pakistan); Supreme Court Advocates-on-Record Association v Union of India (2016) 5 SCC 1.

8. With reference to Fundamental Rights, art 8 provides that, apart from the laws specified in the Constitution’s First Schedule, any law deemed to abrogate or conflict with fundamental rights shall, to the extent of that conflict, be ‘void’; see also Constitution of India 1950, art 13.

9. See Nelson ‘Constitutional Migration and the Meaning of Religious Freedom’ (n 4).

10. The inclusion of non-justiciable ‘Principles of Policy’ was modelled on India’s ‘Directive Principles of State Policy’ (modelled on Ireland’s ‘Directive Principles of Social Policy’).

11. In Pakistan’s 1962 Constitution, promulgated by General Ayub Khan in 1962, all of these rights were reduced to non-justiciable ‘Principles of Law-Making’. Following massive protests, however, they were restored as enforceable ‘fundamental rights’ in the first amendment to that Constitution in 1963.

12. The Ahmadiyya follow a late-nineteenth century religious reformer known as Mirza Ghulam Ahmad (d 1908) who claimed to receive revelations (like a prophet) after the Prophet Mohammad. (Muslims typically regard Mohammad as the final prophet of God.) Since 1973, the Ahmadiyya have been described, within a revised provision of art 260 regarding constitutional definitions, as ‘non-Muslims’. Pakistan’s President and Prime Minister are required to swear an oath that (a) they believe in Mohammad as ‘the last of the Prophets’, and, with every provincial governor, senator, or member of a national or provincial assembly, that (b) they will strive to maintain ‘the Islamic Ideology which is the basis for the creation of Pakistan’: 1973 Constitution, third sch.

13. Crucially, India’s Constitution abjured any explicit reference to ‘secularism’ until 1976, when, via India’s forty-second constitutional amendment, a preambular reference to India as a ‘sovereign socialist secular democratic’ republic was added during the authoritarian interregnum of Prime Minister Indira Gandhi – India’s so-called Emergency (1975–77).

14. These procedures specified a need for support from two-thirds of both legislative houses and the president’s assent (as well as ratification by a majority of states for amendments concerning them).

15. The Constitution (First Amendment) Act 1951 (1st Amendment).

16. See Rudolph, Lloyd I and Rudolph, Susanne H, In Pursuit of Lakshmi: The Political Economy of the Indian State (University of Chicago Press 1987) 109–110Google Scholar.

17. Shankari Prasad v Union of India, AIR 1951 SC 450 (Supreme Court of India).

18. IC Golak Nath v State of Punjab, AIR 1967 SC 1643 (Supreme Court of India). Interestingly, Golak Nath draws on contemporaneous jurisprudence in Pakistan; see eg references to the ‘basic structure of government’ and the ‘essential features of the constitution’ in Fazlul Quader Chowdhry v Muhammad Abdul Haque, PLD 1963 SC 486 (Supreme Court of Pakistan). Few stress this link; most stress the influence of Heidelberg University Professor of Law Dieter Conrad, his 1965 lectures at Benares Hindu University, and his collaboration with Golak Nath counsel MK Nambyar; see Roznai, Unconstitutional Constitutional Amendments (n 1) 44.

19. The Constitution (Twenty-fourth Amendment) Act 1971 (24th Amendment).

20. 1950 Constitution, art 368(1) (emphasis added).

21. Kesavananda Bharati (n 3); see also Baxi, Upendra, ‘Some Reflections on the Nature of Constituent Power’ in Rajeev Dhavan and Alice Jacob (eds), The Indian Constitution: Trends and Issues (NM Tripathi 1978) 122Google Scholar; Gwynn Morgan, David, ‘The Indian “Essential Features” Case’ (1981) 30(2) International and Comparative Law Quarterly 307CrossRefGoogle Scholar; Ramachandran, Raju, ‘The Supreme Court and the Basic Structure Doctrine’ in BN Kirpal et al (eds), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (OUP 2000) 107Google Scholar; Lakshminath, A, Basic Structure and Constitutional Amendments: Limitations and Justiciability (Deep and Deep 2002)Google Scholar; Sathe, SP, Judicial Activism in India: Transgressing Borders and Enforcing Limits (OUP 2002) 63–89, 173–79, 193–94Google Scholar; Jeffrey Jacobsohn, Gary, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4(3) International Journal of Constitutional Law 460CrossRefGoogle Scholar; Krishnaswamy, Sudhir, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (OUP 2010)Google Scholar.

22. In Golak Nath (n 18), the Supreme Court sought to restrict parliament’s powers of constitutional amendment vis-à-vis fundamental rights; in Kesavananda (n 3), the Court placed fundamental rights within a wider class of ‘essential features’ while, at the same time, preserving the possibility of modification so long as those modifications did not abrogate the Constitution’s overarching ‘basic structure’. See also the Constitution of Norway 1814, art 122 (stating that amendments ‘must never … contradict the principles embodied in [the] constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the constitution’). For similar arguments in 19th and early 20th century America and, then, early 21st century Pakistan, see Roznai, Unconstitutional Constitutional Amendments (n 1) 40–42, 223.

23. The Constitution (Thirty-ninth Amendment) Act 1975 (39th Amendment).

24. Indira Nehru Gandhi v Raj Narain, 1975 ASC 1590, (1975) SCC (Supp) 1 (Supreme Court of India).

25. The Constitution (Forty-second amendment) Act 1976 (42nd Amendment). Lloyd and Susanne Rudolph note that unofficial papers illuminated a larger political context in which the government also considered introducing a special Judicial Council to subordinate the judiciary to executive control: Rudolph and Rudolph (n 16) 114, 440 fn 34.

26. Lloyd and Susanne Rudolph describe this Amendment as ‘tantamount to a new constitution’: Rudolph and Rudolph (n 16) 115.

27. Minerva Mills Ltd v Union of India (1980) 2 SCC 591.

28. On the independence of the judiciary, see also SP Gupta v Union of India, AIR 1982 SC 149 (Supreme Court of India).

29. The Court understood that ‘the executive, acting … with the support of parliamentary majorities’, could act in ways that ‘constrain[ed] citizens’ rights’; Rudolph and Rudolph (n 16) 118.

30. SR Bommai v Union of India (1994) 3 SCC 1.

31. Protesters argued that the mosque in Ayodhya had been built on the birthplace of Lord Ram.

32. ‘The destruction of the mosque was … concrete proof of the creed which the party in question wanted to pursue … In such circumstances, the [state-level] ministries formed by the said party could not be trusted to follow the objective of secularism which was part of the [Constitution’s] basic structure’: SR Bommai (n 30) 143 (PB Sawant J); also quoted in Jeffrey Jacobsohn, Gary, The Wheel of the Law: India’s Secularism in Comparative Constitutional Context (Princeton University Press 2003) 145Google Scholar.

33. See Mate, Manoj, ‘Judicial Supremacy in Comparative Constitutional Law’ (2017) 92(2) Tulane Law Review 393, 424–428Google Scholar; Jacobsohn, The Wheel of the Law (n 32) 114–34.

34. Jacobsohn, The Wheel of the Law (n 32) 175.

35. ibid 133; AG Noorani described the NCRWC as ‘an instrument for implementing the BJP’s hidden agenda’: Jacobsohn, The Wheel of the Law (n 32) 140 fn 95.

36. The Constitution (Ninety-ninth Amendment) Act 1971 (99th Amendment).

37. See Mate (n 33) 440–41.

38. The government was entitled to object to the collegium’s recommendations, but if the relevant procedures were followed and the judges unanimously agreed, previous litigation clarified that the government was bound to accept whatever the judges had recommended. See Supreme Court Advocates-on-Record Association v Union of India, AIR 1994 SC 268 (Supreme Court of India).

39. Supreme Court Advocates-on-Record Association v Union of India (n 7) 574–75; see also Mate (n 33) 441–43 and Abeyratne, Rehan, ‘Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective’ (2017) 49(3) George Washington International Law Review 569, 574Google Scholar.

40. V Venkatesan, ‘Judicial Assertion’ Frontline (Chennai, 13 November 2015) 7 <www.frontline.in/cover-story/judicial-assertion/article7809211.ece> accessed 4 October 2018; see also Mate (n 33) 410–11; Abeyratne (n 39). Abeyratne’s ‘institutional’ reading of Supreme Court Advocates-on-Record Association (n 7) notes that, insofar as many democracies do not require judicial primacy vis-à-vis appointments as a marker of ‘judicial independence’, India is an outlier, with Supreme Court Advocates-on-Record Association (n 7) revealing little more than the judiciary’s ‘reluctance to cede its supremacy to the executive and legislative branches’: Abeyratne (n 39) 570. For a similar argument, focusing on Pakistan, see Osama Siddique, ‘Across the Border’ (Seminar, November 2010) <www.india-seminar.com/2010/615/615_osama_siddique.htm> accessed 4 October 2018.

41. Supreme Court Advocates-on-Record (n 7).

42. So far, election law decisions have been criticised for failing to rein in Hindu majoritarianism see Sathe (n 21) 182–91; Cossman, Brenda and Kapur, Ratna, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law (OUP 1999) 113Google Scholar.

43. See Lombardi, Clark B, ‘Designing Islamic Constitutions: Past Trends and Options for a Democratic Future’ (2013) 11(3) International Journal of Constitutional Law 616CrossRefGoogle Scholar. Lombardi focuses on ordinary ‘laws’ rather than constitutional amendments.

44. Constituent Assembly of Pakistan Debates 9 October 1953, vol 15, 88 (Chaudhri Nazir Ahmad Khan).

45. Constituent Assembly of Pakistan Debates 22 October 1953, vol 15, 317 (Abdulla al-Mahmood). This view privileging the Courts over the ulama (who, in arts 228-30, were provided with an advisory role), reflected a position formulated by Muhammad Asad (later embraced by Syed Abul ala Maududi); see Binder, Leonard, Religion and Politics in Pakistan (CUP 1961) 238, 265–66CrossRefGoogle Scholar.

46. See Nelson, Matthew J, ‘Islamic Law in an Islamic Republic: What Role for Parliament’ in Asli Ü Bali and Hanna Lerner (eds), Constitution Writing, Religion and Democracy (CUP 2017) 235CrossRefGoogle Scholar.

47. Binder (n 45) 238, 265–66.

48. See Nelson ‘Islamic Law in an Islamic Republic’ (n 46).

49. In her discussion of basic structure jurisprudence in Pakistan, Newberg notes that, whereas Indian cases like Kesavananda (n 3) ‘discussed constitutional structures in terms of parliamentary sovereignty and judicial powers, in Pakistan these concerns [were] … translated into … the ideological-cum-religious basis of the state and [the] prospects for representative … governance’: Newberg (n 4) 240.

50. Asma Jilani v Government of Punjab, PLD 1972 SC 139 (Supreme Court of Pakistan).

51. ibid 182.

52. Zia-ur-Rahman v the State, PLD 1972 Lahore 382, 390 (Lahore High Court); also quoted in Munir, Muhammad, ‘Precedent in Islamic Law with Special Reference to the Federal Shariat Court and the Legal System in Pakistan’ (2008) 47(4) Islamic Studies 445, 454Google Scholar.

53. Munir (n 52) 454.

54. The State v Zia-ur-Rahman, PLD 1973 SC 49 (Supreme Court of Pakistan).

55. See Munir (n 52) 454 citing Zia-ur-Rahman (n 54) 71. Justice Khanna in Kesavananda (n 3) articulated a similar line of reasoning regarding the basic structure status of constitutional preambles four months later.

56. Quoted in District Bar Association, Rawalpindi (n 7) 45.

57. Islamic Republic of Pakistan v Abdul Wali Khan, PLD 1976 SC 57 (Supreme Court of Pakistan); see also Newberg (n 4) 244.

58. Zia-ur-Rahman (n 52) 76.

59. Federation of Pakistan v United Sugar Mills, PLD 1977 SC 397 (Supreme Court of Pakistan).

60. Fauji Foundation v Shamimur Rehman, PLD 1983 SC 457 (Supreme Court of Pakistan), quoted in District Bar Association, Rawalpindi (n 7) 50, 199 and Roznai, Unconstitutional Constitutional Amendments (n 1) 49.

61. Darwesh M Arbey v Federation of Pakistan, PLD 1980 Lahore 206 (Lahore High Court).

62. ibid 297; see also Munir (n 52) 455 fn 55. Evidently, Justice Patel ignored the addition of ‘we, the people of Pakistan’ at the start of Objectives Resolution in 1973. This change was rejected in 1949 and, then, removed again in 1985.

63. Munir (n 52) 455 fn 55; Roznai, Unconstitutional Constitutional Amendments (n 1) 49.

64. The Constitution (Eighth Amendment) Act 1985 (8th Amendment).

65. Bank of Oman Ltd v East Trading Co Ltd, PLD 1987 Karachi 404, 445 (Sindh High Court).

66. Irshad H Khan v Parveen Ajaz, PLD 1987 Karachi 466 (Sindh High Court); see Munir (n 52) 456.

67. Hakim Khan v Government of Pakistan, PLD 1992 SC 595 (Supreme Court of Pakistan); Kaneez Fatima v Wali Muhammad, PLD 1993 SC 901 (Supreme Court of Pakistan).

68. Quoted in District Bar Association, Rawalpindi (n 7) 227.

69. Quoted in District Bar Association, Rawalpindi (n 7) 72.

70. In 1996, a constitutional amendment pertaining to judicial appointments (and, thus, questions regarding the independence of the judiciary) led the Court one step closer to a Kesavananda-style understanding of basic structure. In Al-Jehad Trust v Federation of Pakistan, PLD 1996 SC 324 (Supreme Court of Pakistan), the Court partially modified its view in Hakim Khan (n 67) suggesting that art 2A should be read as ‘the portion articulating the whole’. Still, the impugned amendment was allowed.

71. Mahmood Khan Achakzai v Federation of Pakistan, PLD 1997 SC 426 (Supreme Court of Pakistan); see also Roznai, ‘Unconstitutional Constitutional Amendments’ (n 2) 696.

72. Achakzai (n 71) 458 (emphasis added); Munir (n 52) 457.

73. Quoted in District Bar Association, Rawalpindi (n 7) 53.

74. Quoted in District Bar Association, Rawalpindi (n 7) 21. Clearly, the Court was divided. In a case regarding the fourteenth amendment to the Constitution (The Constitution (Fourteenth Amendment) Act 1997 (14th Amendment)) barring partisan floor-crossing (art 63A), Chief Justice Ajmal Mian led a majority in refusing to recognize any constitutional ‘basic structure’: Wukala Mahaz Barai Tahafaz Dastoor v Federation of Pakistan, PLD 1998 SC 1263, 1313 (Supreme Court of Pakistan). While Justice Saleem Akhtar thought that there might be such a structure, Justice Mamoon Kazi, writing for the minority, insisted that there was such a structure (ibid 1436). Justice Raja Afrasiab Khan adjusted his earlier position in Achakzai to hold that, ultimately, fundamental rights and the Islamic character of the state could not be repealed (ibid 1423). In its final judgment, the Court seemed to waffle: even if there were a constitutional basic structure against which constitutional amendments could be assessed, the 14th Amendment was allowed to stand because it was not found to violate whatever that structure might be; see District Bar Association, Rawalpindi (n 7) 215.

75. Mir, Waqqas, ‘Saying Not What the Constitution is … But What It Should be: Comment on the Judgment on the 18th and 21st Amendments to the Constitution’ (2015) 2 LUMS Law Journal 64, 69Google Scholar; for constraints on the amending power of a dictator, see also Fazlul Quader Chowdhry (n 18).

76. Zafar Ali Shah v General Pervez Musharraf, PLD 2000 SC 869 (Supreme Court of Pakistan); see also Roznai, Unconstitutional Constitutional Amendments (n 1) 51.

77. Roznai, ‘Unconstitutional Constitutional Amendments’ (n 2) 697.

78. Mir (n 75) 69; Pakistan Lawyers Forum v Federation of Pakistan, PLD 2005 SC 719 (Supreme Court of Pakistan).

79. The Constitution (Seventeenth Amendment) Act 2003 (17th Amendment).

80. Art 63(1)(d) barred parliamentarians from holding a military or a bureaucratic ‘office for profit’ … ‘other than an office declared by law’; Musharraf simply passed a law allowing the President to serve as Chief of the Army Staff.

81. Roznai, Unconstitutional Constitutional Amendments (n 1) 51; Roznai, ‘Unconstitutional Constitutional Amendments’ (n 2) 698 (citing 17th Amendment Case (n 78) 27).

82. District Bar Association, Rawalpindi (n 7) 468.

83. See District Bar Association, Rawalpindi (n 7) 465 quoting 17th Amendment Case (n 78) paras 41, 56–57: ‘The superior courts of this country have consistently acknowledged that while there may be a basic structure to the constitution, and while there may also be limitations on the power of parliament to make amendments to such basic structure, such limitations are to be exercised and enforced not by the judiciary … but by the body politic, i.e. the people of Pakistan’.

84. District Bar Association, Rawalpindi (n 7).

85. The Constitution (Eighteenth Amendment) Act 2010 (18th Amendment); Constitution (Nineteenth Amendment) Act 2010 (19th Amendment); and the Constitution (Twenty-first Amendment) Act 2015 (21st Amendment).

86. The Court’s decision in Al-Jehad Trust (n 70) rendered the role of the President (or Governor) largely redundant.

87. The PC was to have eight members – four from the National Assembly and four from the Senate (with an equal number from the government and the opposition) – empowered to reject JC nominees with six votes; see Siddique, Osama, ‘The Judicialization of Politics in Pakistan: The Supreme Court after the Lawyers’ Movement’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (CUP 2015) 159CrossRefGoogle Scholar.

88. Nadeem Ahmed v Federation of Pakistan, PLD 2010 SC 1165 (Supreme Court of Pakistan). ‘To hold th[is] petition maintainable was a very strong statement in itself’, notes Saroop Ijaz, since, historically, the Court had not ‘[sat] in judgment over constitutional amendments’; see Ijaz, Saroop, ‘Judicial Appointments in Pakistan: Coming Full Circle’ (2014) 1(1) LUMS Law Journal 86, 88Google Scholar.

89. These recommendations were challenged (unsuccessfully) in the case of Munir Hussain Bhatti v Federation of Pakistan, PLD 2011 SC 407 (Supreme Court of Pakistan); see also Khan, Asmat Ullah, ‘Threats and Challenges to Parliamentary Supremacy in Pakistan from 2008–2013’ (PhD thesis, Quaid-i-Azam University, 2018) 194–199Google Scholar.

90. District Bar Association, Rawalpindi (n 7) 853–56.

91. Waqqas Mir (n 75); Achakzai (n 71). See also Roznai, Unconstitutional Constitutional Amendments (n 1); Lau (n 4) 91.

92. District Bar Association, Rawalpindi (n 7) 21.

93. Mir (n 75) 75.

94. Imran Ahmed Khan v Mian Muhammad Nawaz Sharif, 2017 PLD 692 SC (Supreme Court of Pakistan).

95. See Rasool, Saad, ‘Distilling Eligibility and Virtue: Articles 62 and 63 of the Pakistani Constitution’ (2014) 1 LUMS Law Review 39, 50–51Google Scholar. Rasool notes that provisions like art 62(f) were inserted by General Zia solely for the purpose of ‘political victimization and witch-hunting’: ibid 55. In 2012, the Supreme Court upheld the disqualification of Interior Minister Rehman Malik as ‘dishonest’ (art 62(f)) on the basis of a false declaration regarding his dual citizenship (art 63(c)): ibid 61. In 2013, the Court also removed Pakistan People’s Party Prime Minister Yusuf Raza Gilani; he was convicted of contempt of court (art 63(g)) for ignoring a court order requiring him to reopen a corruption case in Switzerland initiated by Nawaz Sharif against Benazir Bhutto and her widower Asif Zardari.

96. See Iftikhar A Khan, ‘Government Reveals Plans to Amend Articles 62, 63’ Dawn (Karachi, 23 August 2017) <www.dawn.com/news/1353269> accessed 4 October 2018; Hidayat Khan, ‘Ironic: Nawaz Didn’t Let Articles 62, 63 Amended: Asfandyar’ The Express Tribune (Karachi, 29 July 2017) <https://tribune.com.pk/story/1469555/anps-asfandyar-calls-immediately-amending-article-62-6/> accessed 4 October 2018; Rameez Khan, ‘If PML-N Wins, Law Will Be Amended to Make Sharif PM Again: Sanaullah’ The Express Tribune (Karachi, 14 March 2018) <https://tribune.com.pk/story/1659313/1-pml-n-wins-law-will-amended-make-sharif-pm-sanaullah/> accessed 4 October 2018; InpaperMagazine, ‘Qualifications for Candidates – A Constitutional Puzzle’ Dawn (Karachi, 1 September 2017) <www.dawn.com/news/1355356> accessed 4 October 2018.

97. For an argument regarding the ‘Islamization’ of Pakistan’s superior judiciary alongside assertions of judicial over political authority, see Cheema, Moeen H, ‘Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan’s Law’ (2012) 60(4) American Journal of Comparative Law 875, 894, 901–03, 909–10CrossRefGoogle Scholar.

98. Newberg (n 4) 243 notes that ‘[w]hile the [Supreme C]ourt acts as guarantor for elected government, to violate its judgment in the sensitive area of Islamic obligation [would be] to reignite a state-ideology dispute in a form that secular government is [very] unlikely to win’; indeed, it is worth recalling that, even in India, sizable parliamentary majorities did not deter a Supreme Court turn to basic structure jurisprudence: Indira Gandhi (n 24) (1975; Congress Party majority 66%); Supreme Court Advocates-on-Record (n 7) (2015; BJP majority 52%); see also Siddique, ‘The Judicialization of Politics in Pakistan’ (n 87).

99. It is telling that, during the District Bar Association, Rawalpindi (n 7) proceedings, several judges seemed to revive the views of Justice Tanzil-ur-Rahman, balancing their appreciation for an enforceable understanding of constitutional ‘basic structure’ with a nod to art 2A; Siddique, ‘Across the Border’ (n 40) 3.

100. See eg Roznai, Unconstitutional Constitutional Amendments (n 1); Achakzai (n 71).

101. This line between Iqbal and Asad cuts to the core of Roznai’s effort to defend activist courts underpinned by basic structure jurisprudence if their jurisprudence can be said to support ‘the will of the people’; see Roznai, Unconstitutional Constitutional Amendments (n 1) 229–30. Where is this ‘will’ located, vis-à-vis Islam, in Pakistan’s constitutional basic structure: in parliamentary (Iqbal) or judicial (Asad) interpretations of Islamic injunctions?

102. See the decision of the Supreme Court of Sri Lanka on the 19th Amendment to the Constitution of Sri Lanka. Re A Bill Entitled ‘The Nineteenth Amendment to the Constitution’, SC Special Determination Nos 4–19/2015 (9 April 2015). Basic structure jurisprudence was considered especially unlikely in Sri Lanka, where the Constitution (art 82(5)) explicitly allows for ‘the repeal and replacement of the constitution [itself]’.

103. On Sri Lanka’s judicialized approach to religion-state relations, see Schonthal, Benjamin, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (CUP 2016)CrossRefGoogle Scholar.

104. Abeyratne (n 39); Roznai, ‘Unconstitutional Constitutional Amendments’ (n 2).