From Dawn today:
Mr Haris, on the other hand, argued that the Constitution of Pakistan, like other constitutions, had its own basic structure and unique personality and that parliament did not enjoy unfettered powers to bring any kind of amendment.
According to him, the salient features as developed by courts were federalism, a parliamentary form of government blended with Islamic provisions, fundamental rights and independence of the judiciary. “And the force that binds and holds all the salient features together is that sovereignty belongs to Almighty Allah,” he said.
Khwaja Haris said the salient features were the four pillars which were holding up the entire edifice of the Constitution. Weakening any one of them would endanger the entire edifice, he said, adding that all the four salient features had been derived from the Objectives Resolution that had become a substantial part of the Constitution.
This strikes me as a rather strange argument. If we accept the basic structure theory – which is a controversial issue- and also assume that the parliament cannot change the said basic structure through the normal prescribed method of constitutional amendment, it surely cannot be contained in the Objectives Resolution. Khawaja Harish says that all the four salient features had been derived from the Objectives Resolution that had become a substantial part of the Constitution.
The Objectives Resolution became the substantive part through 1985’s order 14, which was granted indemnity through the eighth amendment. That the eighth amendment changed the basic structure of the parliamentary constitution is well known. Also well known is that it indemnified the illegal actions of a coup maker who committed treason. Eighth Amendment therefore suffers from the same illegality vis a vis the basic structure as is being alleged about the eighteenth amendment. If the Eighth Amendment is illegal, as it should be, then so is the order that made Objectives Resolution the “substantive part” of the constitution. The whole thing suffers from the grandfather paradox.
I am surprised that people with responsible positions can come up with such spurious arguments as the one quoted from the news story or the argument about “secularism” that CJP recently put forth.