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Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion

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Abstract

In both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam.

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... We focus on Pakistan (see also Nelson 2019a), but, in a comparative sense, this mode of textual borrowing followed by politically exclusionary re-signification can also be found in Malaysia, with reference to religious-freedom provisions. Like Pakistan, Malaysia borrowed key elements of its constitutional religious freedom provisions from India before reinterpreting those provisions to privilege the country's Muslim majority (Moustafa 2018;Nelson 2019b). ...
... This mode of transnational invocation and political re-signification (without any transfer of text) also exists outside of Egypt. In Pakistan, judges have invoked the Indian concept of an unwritten constitutional "basic structure"-which, in India, has been used to advance secular commitments-to defend, in Pakistan, a parliamentary form of government blended with Islamic provisions (Nelson 2018). ...
... This book was also combined with a second volume entitled Constitutions of Eastern Countries and used by the Constituent Assembly of Pakistan (Ahmad 1951). Within Pakistan, these compendia set the stage for direct forms of borrowing-and, later, refashioning-foreign constitutional models (Nelson 2019a). ...
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‘Saying Not What the Constitution is … But What It Should be: Comment on the Judgment on the 18th and 21st Amendments to the Constitution’
  • Mir
‘Distilling Eligibility and Virtue: Articles 62 and 63 of the Pakistani Constitution’
  • Rasool
See Saad Rasool, 'Distilling Eligibility and Virtue: Articles 62 and 63 of the Pakistani Constitution' (2014)
‘Judicial Appointments in Pakistan: Coming Full Circle’
  • Ijaz
‘Judicial Supremacy in Comparative Constitutional Law’
  • Mate
Threats and Challenges to Parliamentary Supremacy in Pakistan from
  • Ullah Khan Asmat
‘Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective’
  • Abeyratne
‘Colonial Cousins: Explaining India and Canada’s Unwritten Constitutional Principles’
  • Krishnamurthy
  • Lau
Some Reflections on the Nature of Constituent Power
  • Kesavananda Bharati
Kesavananda Bharati (n 3); see also Upendra Baxi, 'Some Reflections on the Nature of Constituent Power' in Rajeev Dhavan and Alice Jacob (eds), The Indian Constitution: Trends and Issues (NM Tripathi 1978) 122;
Essential Features" Case' (1981) 30(2) International and Comparative Law Quarterly 307
  • Morgan David Gwynn
David Gwynn Morgan, 'The Indian "Essential Features" Case' (1981) 30(2) International and Comparative Law Quarterly 307; Raju Ramachandran, 'The Supreme Court and the Basic Structure Doctrine' in BN Kirpal et al (eds), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (OUP 2000) 107; A Lakshminath, Basic Structure and Constitutional Amendments: Limitations and Justiciability (Deep and Deep 2002);
To hold th [is] petition maintainable was a very strong statement in itself', notes Saroop Ijaz, since, historically, the Court had not '[sat] in judgment over constitutional amendments'; see Saroop Ijaz
Nadeem Ahmed v Federation of Pakistan, PLD 2010 SC 1165 (Supreme Court of Pakistan). 'To hold th [is] petition maintainable was a very strong statement in itself', notes Saroop Ijaz, since, historically, the Court had not '[sat] in judgment over constitutional amendments'; see Saroop Ijaz, 'Judicial Appointments in Pakistan: Coming Full Circle' (2014) 1(1) LUMS Law Journal 86, 88.
See also Roznai, Unconstitutional Constitutional Amendments
  • Achakzai
Achakzai (n 71). See also Roznai, Unconstitutional Constitutional Amendments (n 1);
Ironic: Nawaz Didn’t Let Articles 62, 63 Amended: Asfandyar’ The Express Tribune (Karachi
  • A Iftikhar
  • Khan
See Iftikhar A Khan, 'Government Reveals Plans to Amend Articles 62, 63' Dawn (Karachi, 23 August 2017) < www.dawn.com/news/1353269 > accessed 4 October 2018; Hidayat Khan, 'Ironic: Nawaz Didn't Let Articles 62, 63 Amended: Asfandyar' The Express Tribune (Karachi, 29 July 2017) < https:// tribune.com.pk/story/1469555/anps-asfandyar-calls-immediately-amending-article-62-6/ > accessed 4 October 2018; Rameez Khan, 'If PML-N Wins, Law Will Be Amended to Make Sharif PM Again: Sanaullah' The Express Tribune (Karachi, 14 March 2018) < https://tribune.com.pk/story/1659313/1-pml-n-wins-law-will-amended-make-sharif-pm-sanaullah/ > accessed 4 October 2018;
Qualifications for Candidates -A Constitutional Puzzle' Dawn
  • Inpapermagazine
InpaperMagazine, 'Qualifications for Candidates -A Constitutional Puzzle' Dawn (Karachi, 1
For an argument regarding the 'Islamization' of Pakistan's superior judiciary alongside assertions of judicial over political authority, see Moeen H Cheema
For an argument regarding the 'Islamization' of Pakistan's superior judiciary alongside assertions of judicial over political authority, see Moeen H Cheema, 'Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan's Law' (2012) 60(4) American Journal of Comparative Law 875, 894, 901-03, 909-10.
Unconstitutional Constitutional Amendments
  • Roznai
Roznai, 'Unconstitutional Constitutional Amendments' (n 2).
Government Reveals Plans to Amend Articles 62
  • See Iftikhar
  • A Khan
See Iftikhar A Khan, 'Government Reveals Plans to Amend Articles 62, 63' Dawn (Karachi, 23 August 2017) < www.dawn.com/news/1353269 > accessed 4 October 2018;
Across the Border' (n 40) 3. indian basic structure jurisprudence in the islamic republic of pakistan 355
  • Siddique
Siddique, 'Across the Border' (n 40) 3. indian basic structure jurisprudence in the islamic republic of pakistan 355
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See the decision of the Supreme Court of Sri Lanka on the 19th Amendment to the Constitution of Sri Lanka. Re A Bill Entitled 'The Nineteenth Amendment to the Constitution
See the decision of the Supreme Court of Sri Lanka on the 19th Amendment to the Constitution of Sri Lanka. Re A Bill Entitled 'The Nineteenth Amendment to the Constitution', SC Special Determination Nos 4-19/2015 (9 April 2015). Basic structure jurisprudence was considered especially unlikely in Sri Lanka, where the Constitution (art 82(5)) explicitly allows for 'the repeal and replacement of the constitution [itself]'.
Saying Not What the Constitution is … But What It Should be: Comment on the Judgment on the 18th and 21st Amendments to the Constitution’ (2015) 2 LUMS Law Journal 64, 69Google Scholar; for constraints on the amending power of a dictator, see also Fazlul Quader Chowdhry
  • Waqqas Mir
Abeyratne (n 39). Abeyratne’s ‘institutional’ reading of Supreme Court Advocates-on-Record Association (n 7) notes that, insofar as many democracies do not require judicial primacy vis-à-vis appointments as a marker of ‘judicial independence
  • Venkatesan