Tuesday, May 5, 2015

A straw in the wind in Pakistan?

This article in the Economic Times reports an interesting colloquy in the Supreme Court of Pakistan's hearing on the validity of the 18th and 21st Amendments to the Constitution (the latter being the one that authorizes the new military courts with power to try civilians). The colloquy concerned whether Parliament, which has the power to amend the Constitution, could lawfully alter the country's status from a Muslim state to a secular one, or whether so profound a change would require the convening of a Constituent Assembly. The implication would seem to be that certain changes are so fundamental that they lie outside Parliament's authority . . . and the military courts amendment may be one of them.

Postscript: here is Dawn's account of Monday's argument. One of course never knows whether a judge's questions from the bench reveal where he or she will come out in the end, but it does seem that the justices are divided on whether the Supreme Court can invalidate a constitutional amendment.
“Can an imported academic theory from Germany confer the power on the judges to strike down the amendment,” Justice [Asif Saeed] Khosa asked. “We never spare the executive or the legislature when they overstep their authority and equate them with criminals but ask the judges to take a lenient or liberal view in interpreting the Constitution only to assume the authority to strike down the amendment which was never given to them by the Constitution,” he observed.
Recommended reading: Aharon BarakUnconstitutional Constitutional Amendments, 44 Isr. L. Rev. 321 (2011).

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