The honorable Supreme Court of Pakistan has delivered what can truly be regarded as a “landmark” judgment, rendered by the full court, in cases concerning a challenge to the 18th and 21stConstitutional Amendments. This exhaustive judgment – authored in parts by 10 different judges, spanning over 900 pages – makes for an incisive read into the constitutional history of Pakistan, and provides a revealing window into the competing judicial philosophies of different members of the honorable Bench.

In summary, the august Court, through a majority of 11 – 6 has: 1) concluded that the a constitutional amendment can be challenged and reviewed (on the basis of “corum non judice, being without jurisdiction, or suffering from mala fide”); 2) upheld the 18thand 21stconstitutional amendments; 3) rejected the Basic Structure Doctrine, as an impeachable part of our Constitution; and 4) declared that there shall be some (limited) oversight as to which cases are referred to the military courts, and how the trial takes place.

At the very outset, one exceptionally encouraging feature of the honorable Court’s judgment must be recognized and saluted; for the first time, in a long time, we have seen members of a split court render passionate opinions in defense of their divergent constitutional conclusions. This judgment brings to close that intellectually depressing era of the Iftikhar Chaudhary years, when voices of dissent had been all but snuffed out form the apex Court. In fact, those closest to the Bench would vouch for the fact that during the initial challenge to 18th Constitutional Amendment, in 2010, Chief Justice (R) Iftikhar Chaudhary stopped just shy of striking down the said Amendment, and declaring a Basic Structure for our Constitution, simply because a 17 – 0 consensus for such a judgment could not be reached on the Bench. As a result, a compromised interim order was delivered instead.

Thankfully, the shackles of that bygone era have finally melted away, making way for each judge to speak his mind, even while disagreeing with fellow members of the Bench. And the credit, in this regard, rests with the leadership of the honorable Supreme Court, and in particular with Chief Justice Nasir-ul-Mulk.

In terms of the substance of the judgment itself, it is virtually impossible to comment on the same comprehensively, within the restricted confines of an Op-Ed piece. However, what requires elaborate praise and purposeful attention is the exceptionally bold opinion penned by honorable Justice Mian Saqib Nisar.

The honorable judge’s opinion, while agreeing with the majority of the Bench, exhaustively traces the ambit and applicability of the Basic Structure Doctrine, in order to relentlessly answer a singular question: does the “constituent power” to (even drastically) amend the Constitution lie “with an unelected judiciary, although certainly acting with the utmost good faith and in the national interest, or with the chosen representatives of the people, even though they may not always come up to the expectations of the public?”.Through a jurisprudential discourse, over a 160 pages long, Justice Saqib Nisar declares that, within our democratic paradigm and constitutional framework, “the latter and not the former” are the real custodians of supreme political and lawmaking power.

For those unfamiliar with the legal parlance, the ‘Basic Structure Doctrine’ is an elusive constitutional idea that deems certain principles to be so fundamental (and supra-constitutional) in nature that even a constitutional amendment, carried by the full force of (a transparently elected)Parliament, cannot change or amend the same. And that (an unelected) judiciary is the sole determinant and custodian of this Basic Structure, on the touchstone of which, even provisions of the Constitution itself can be struck down.

Justice Saqib Nisar’s opinion deconstructs and obliterates the idea of an unamendable Basic Structure, chosen at the whim of unelected judges, over and above the express provisions of the Constitution.

Justice Nisar’s opinion, written in a candid Jeffersonian style (departure from the honorable judge’s regular formalistic tone)reads as a passionate cry in defense of democratic theory. Passages from this judgment could easily have been portions of Cato’s defense of the Republic, when the Roman Senate sought to endorse Caesar’s authoritative rule.

His opinion argues that, if the Basic Structure Doctrine is adopted, it would result in a “surprising definition of democracy”, where “the most basic and foundational of all rights, which lies at the heart of democracy, namely the power to determine how and by whom, and in what manner, a State is to be governed, which vests with the people, and is to be exercised through their elected (and not appointed) representatives, will have been fatally eroded.” He argues that this is the very reason why we oppose autocracy and military dictatorships, “because unelected persons claim to be wiser than ordinary people and hence more entitled to exercise supreme power”.

Justice Nisar’s opinion makes no excuses for the elected representatives, and their track record of being “corrupt and incompetent”. In the same breath, however, he argues that “[i]f the elected representatives do fail on this score (and that is often true, not merely in Pakistan but also in societies regarded as more advanced or mature), that is most emphatically not an argument which justifies a dilution of the democratic principle.”While accepting that decisions of the elected representatives have, in the past, defiled our democratic ethos and public interest, Justice Nisar parts with the past practice of defending a checkered judicial legacy, and asks “Is the record of the judiciary that much better?”

The truth is that we live in the cusp of a defining moment in history. We are faced with a war from within, which threatens to shake the very foundations of our existence. We are governed by forces of status quo that continue to erode our collective faith in the virtue of democracy. We have a broken electoral system, a sclerotic economy, and a pervious empire of law that lives in the shade of a corrupted religious philosophy.

During this time, more than ever before, we must resist the impulsive desire to seek tainted solutions for our national problems. In this moment, more than ever in the past, we must shun the temptation to kneel at the undemocratic altar of “Doctrine of Necessity” or the “Basic Structure Doctrine”. Because it is in moments of weakness, such as these, that our democratic spirit and mettle is put to the test. And the final judgment on this era, by the generations to come, will depend on our ability to remain loyal to the puristic spirit of democracy and to uphold the sanctity of our Constitution.

This is the moment to celebrate intrepid judges, like Justice Saqib Nisar, who are willing to constrict their own judicial authority, in order to expand and flourish the spirit of democracy. The era of Iftikhar Chaudhary brand of justice must now come to a close. And, in its wake, a new judicial philosophy must now take the helm of affairs; a philosophy that is neither insecure of, nor threatened by, other branches of the government. A philosophy that recognizes the infinite good that can be done by the august Court, while remaining within the four corners of our democratic Constitution.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu

@Ch_SaadRasool