There have been a number of petitions made to the Supreme Court of Pakistan against those provisions of the 18th Amendment providing for a judicial commission to replace the chief justice, who before the amendment was responsible. If the touchstone by which the court judges all laws is the constitution, then what is the touchstone by which an amendment to the constitution will be judged? The answer is quite simple, the basic structure of the constitution, which the Supreme Court itself has declared as consisting of its federal, parliamentary nature admixed with its Islamic provisions. The current appeals to the Supreme Court are based on the judgements which call for a free judiciary, and their claim rests on the judicial commission for appointments to the superior judiciary being viola-tive of the freedom of the judiciary. Using the doctrine of a basic structure which not even Parliament could violate through amendment, first the Indian Supreme Court struck down amendments of the constitution, then so did the Pakistani Supreme Court. The Indian example is quite old, and adds to the body of doctrine surrounding written constitutions. It had been assumed that the power of a Parliament to amend a constitution meant that it could change a constitution enforcing a democratic dispensation into one enforcing another. Since the Indian precedents had been related to Indira Gandhis attempts to remain in power despite electoral defeat that seemed particularly apposite. However, the basic features doctrine goes back even earlier, to the Kesavananda Bharati v. The State of Kerala, a case decided by the Indian Supreme Court in 1973 by a 13-judge bench of the Indian Supreme Court, which held that the Indian Parliament could not so amend the Indian constitution so as to alter its basic structure. This is not a precedent binding on the Supreme Court of Pakistan, but it does have persuasive value. As such, it might also be noted that this judgement was made at the same time as Pakistans 1973 Constitution was passed. However, it must be noted that this doctrine elevates two bodies. First is the Parliament, which passed the original constitution. Then is the Supreme Court that determines the basic structures which cannot be amended. The Indian Supreme Court also determined that the constitution only allowed amendments to be made by Parliament following the laid down procedure, but such amendments could not affect the basic structures. Obviously, this was an explosive decision. And it was quoted for Raj Narayan, who had been Mrs Gandhis opponent in the 1971 elections, and who filed an election petition against her. The petition came to the Supreme Court which it decided against Mrs Gandhi, who was allowed to continue as PM so long as she did not draw a salary or speak in Parliament till the case was decided. Emergency was not yet imposed, and the Indian Parliament thereupon passed the 39th Amendment, taking election disputes involving the president, vice-president, PM and Lok Sabha speaker, away from the courts, and placing them before a special parliamentary body. This provision was struck down. Judicial review, and thus the independence of the judiciary, has been held to be a basic feature of the constitution. For the independence of the judiciary, the system of appointments and promotions is supposed to be taken out of the discretion of the politicians. Therefore, the judicial commission seems a good area on which the doctrine might be applied. Apart from the Supreme Court of India, the Supreme Court of Pakistan also has considered the question, and also seems to believe that the 1973 Constitution has certain basic features, and to feel that these cannot be amended by Parliament. To that extent, it restrains the untrammelled power of Parliament to amend the constitution as it wishes. However, the basic structures doctrine is probably the only way open for the Supreme Court to adjudicate on a constitutional amendment. At the same time, the doctrine does not oblige the Supreme Court to rule out the entire amendment, only those provisions which violate the basic features of the constitution. It will thus have to be explained how the offending provisions attract the doctrine. It should be noted that the Supreme Court has been fiercely protective of its independence, and has clashed with the government on this point. If it has so far resisted executive interference, why should it resist legislative, particularly since it has repeatedly ruled that it is merely supposed to interpret laws? However, it must be remembered that the present government has not established a legislative dictatorship, as alone it does not have the ability to amend the constitution as it wills, but needs at least the support of the other main party, both in Parliament and the country, where it is its main rival to form the government. The Supreme Court will not have to identify the basic structures afresh, as that has been done in previous cases. Nor will it have to deal with the question of how a legislature which wishes to change those features might do so. The alternative is for the Supreme Court to avoid the various pitfalls inherent in the basic structure doctrine, and rule that it cannot interfere in the legislative process. This might have the merit of conservatism, but it means accepting the judicial commission for the future. This implies accepting the interference of such people as the law minister in the appointments process. However, the Supreme Court so far has not accepted such interference. At the same time, it has never rejected legislative authority before. It might decide to accept, in the belief that the law minister represented only one voice on the commission, and thus he could not do a superhuman amount of harm. However, if it rejected the commission, it would rely on the basic structure doctrine to rule it out. The government can determine a lot by its attitude towards the case. It should not do anything unadvisedly, and must remember how important was this amendment to it, and how hard it worked to obtain a consensus of all parties in Parliament on it. It must take a holistic approach, as well as keep in mind that it is not a question of governance, but of the countrys constitution, and it must not have short-term goals in mind. Email: maniazi@nation.com.pk