Nauman Asghar Justice Brandies, in Myers v US (1926), wrote: The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. The constitution is indeed an organic, living document and it is expected to endure for ages to come. Parliament possesses the authority to amend the constitution to cater to the changing needs of the citizens of a country. While the judiciary is invested with the power to interpret the constitution so that it could reflect the spirit of the age. John Marshall, the famous Chief Justice of the US Supreme Court, said in Marbury vs Madison case: It is emphatically the province and duty of the judicial department to say what the law is....It would be up to the Court to resolve any constitutional ambiguities over the legal boundaries of the separation of powers. The current constitutional crisis boils down to the question of jurisdiction of the Supreme Court to strike down a constitutional amendment, after it has been passed by an overwhelming majority of Parliament. Surprisingly, even the prominent lawyers of the country are divided over the issue and the matter is likely to be resolved in the court in the coming days. The defenders of the unlimited amending authority of Parliament emphasise that this right has been explicitly conferred to it by the constitution. Moreover, under Article 239(5), no amendment so enacted can be called into question in any court on any ground whatsoever. Such a provision is known as jurisdiction ousting clause in terms of constitutional jurisprudence. Our analysis here, on the one hand, will determine the scope of Parliaments authority to amend the constitution. While, on the other hand, try to discern the approach of Pakistani courts to interpret ouster clauses. In India, the Supreme Court developed the basic structure theory in Kesavananda Bharati Case (AIR 1973 SC 1461), which was reasserted in Minerva Mills Case (AIR 1980 SC 1789). Chief Justice Y V Chandrachud stated in Mills case: Our constitution is a controlled constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers....Parliament, too, is a creature of the constitution and...cannot amend the constitution as to alter its basic structure or to change its identity. Similarly in Pakistani jurisprudence, the Supreme Court has accepted the basic constitution theory to invalidate a constitutional amendment in Mehmood Khan Achakzai v Federation of Pakistan (PLD 1997 SC 426), and later in Syed Zafar Ali Shah v General Pervez Musharraf (PLD 2000 SC 869). The features of the Pakistani constitution, protected under the basic structure doctrine, include federalism, parliamentary democracy and Islamic provisions including the independence of judiciary. The substantive question in the petitions challenging the establishment of the Judicial Commission under the Eighteenth Amendment is, whether the new method of appointment of judges will be an attack on the independence of judiciary? Will the new method lead to the politicising of the institution of judiciary? Therefore, the Supreme Court will rightly consider the character of our parliamentarians and the way the previous assemblies passed several amendments in an attempt to make the judiciary subservient. Zulfikar Ali Bhutto, the maker of the constitution of 1973, himself introduced the Fifth and Sixth Amendments during his reign, jeopardising the independence of the judiciary. Notwithstanding anything, in the light of the above-mentioned cases it is crystal clear that Parliament has limited authority to amend the constitution. And if Parliament transgresses its constitutional limitations, the Supreme Court can invalidate such action, including the constitutional amendment, by invoking the 'basic structure doctrine. The defenders of Parliaments authority proffer the argument that even if there are limitations on its (Parliament) power to alter the basic structure of the constitution, the judiciary cannot enforce these limitations in view of the ouster clause. Rather the remedy lies in the political process. This objection can be rebuffed by examining how does the court approach the jurisdiction ousting clauses. It is settled law that the exclusion of the ordinary jurisdiction of the courts is not to be readily inferred; however, such exclusion must be either explicitly expressed or clearly implied. The courts start with a strong presumption against the ouster of their jurisdiction and construe such provision strictly. At various places in the Constitution of Pakistan (inter alia Article 236, 270, 239), the jurisdiction of the court has been excluded. But the court has taken a consistent view those acts, orders or proceedings which are done, taken or made without jurisdiction, mala fide or coram non-judice cannot be saved from the security of courts by the ouster clauses. This was reaffirmed in unmistakable terms by a unanimous 13-member bench in Syed Zafar Ali Shah case. In this, the learned chief justice observed it is of utmost importance that the judiciary is independent and no restraints are placed on its performance and operation. The court has always claimed that it has the right to say as to what a particular provision of the constitution or a legislative instrument means even if that particular provision is seeking to oust the jurisdiction of the court. Nevertheless, judicial independence is defined in terms of the relationship of the court with the other organs of the state, particularly the executive branch of government. There is no denying the fact that the independence of judges hinges, to a large extent, inter alia, on the 'transparency of the mode of their appointment. Certainly, if the method of appointment proposed under the Eighteenth Amendment continues, the whole process will be politicised in case the confirmation of judges depends on the whims and caprices of members of the Parliamentary Committee. Besides creating a situation of deadlock, the nominated candidates will try to curry favour with the political parties rather than preserving the integrity of the judicial organ. Truly, the primacy of the Chief Justice of Pakistan must be ensured in the process of the appointment of judges of superior judiciary because he can be the best judge of their fitness. Since 1947, the judiciary had a chequered history because of the machinations of the corrupt dictators and morally depraved politicians. It is only in the wake of the lawyers movement triggered by the unconstitutional dismissal of Chief Justice Iftikhar Muhammad Chaudhry that the peoples confidence in the apex court has been restored. Those who foresee confrontation between Parliament and judiciary forget that the judicial independence must be guarded under all circumstances. Lord Woolf, a great authority on Judicial Review, wrote: The tension created by judicial review is acceptable because it demonstrates that the courts are performing their role of ensuring that the actions of the government of the day are being taken in accordance with the law. The tension is a necessary consequence of maintaining the balance of power between the legislature, the executive and the judiciary. The writer is an advocate and teaches International and Constitutional Law at Punjab University Law College. Email: