Supreme Court’s earlier judgement and the 18th amendment case

Faisal Naseem Chaudhry

The 18th Amendment case is likely to conclude soon and it is quite probable (courtesy of remarks of the Honourable Judges) that the SC may strike down a constitutional amendment finding it contrary to Independence of Judiciary; in other words finding it contrary to the ‘Basic Structure of the Constitution’.

Pasted below are some excerpts from a Five Member Bench Judgement of the SC delivered on 13 April 2005. The Judgement is known as Pakistan Lawyers Forum vs Federation of Pakistan and through this cluster of different petitions, the constitutionality of 17th Amendment was challenged before the SC. One of the grounds was that the 17th Amendment was violative of the Basic Structure of the constitution. As stated earlier, it was a Five Member bench and the then two members are still members of the Full Bench of today i.e. Chief Justice Iftikhar Chaudhry and Justice Javed Iqbal.

President Musharraf’s Uniform / Dual Office quite analogous to President Zardari’s Dual Office was also challenged in the same petition, and dismissed accordingly, but since that is not the subject today, so that part of SC’s wisdom as to how it handled that question in 2005 is ignored at this point of time to be discussed in future.

The five member bench in 2005 dismissed the petition and upheld the 17th Amendment. The court held that the Indian Doctrine of Basic Structure of the Constitution has never been accepted in Pakistan’s judicial history; and that the Court can strike down a Constitutional Provision only if it is not passed in accordance with the procedures provided by the Constitution itself. Once an amendment is passed, it is left to the wisdom of the Parliament which passed it to change it in future according to the aspirations of the people of Pakistan.