Venerable Justice (retd) Bhagwan Das, in his well received article entitled "Who can Alter Basic Law", published in the Dawn on the 14th of February, 2007, has extrapolated, from the body of Pakistani case law on the Constitution, as follows :

(a) "…..On no pretext could a 'permanent change' in the Constitution be countenanced either at the behest of the President or a court".

(b) The Supreme Court has conceded the power of an individual, such as the President and/or CMLA, to amend the constitution in periods of constitutional deviation.

(c) However, the validity of such amendments is coterminous with the period of constitutional deviation. They "….can have no effect after the revival of the Constitution."

Justice Bhagwan Das made his extrapolations, from the case law and practice in Pakistan, in absolute good faith and they must be read and understood in the light of the first paragraph of his article, wherein he has clearly stated that he was only going to deal with the legal effect of the revocation of the Proclamation of emergency and PCO on the 15th of December, 2007 and not the legality or justification for the same.

Ever since the publication of Justice Bhagwan Das' article constitutional experts have begun to refer to amendments in the Constitution passed, in accordance with Article 239 of the Constitution, by a majority of 2/3 of the total number of members of both Houses as being 'permanent amendments'. Thus allowing one to draw the implicit inference that there exists, in law, a second category of 'temporary amendments' to the Constitution. Such an inference has also led experts to discuss the possible duration of such purported amendments to the Constitution.

On the 15th of March, 2008 five (5) former Chief Justices of Pakistan and Sixteen (16) retired judges issued a joint statement affirming that :

(a) the removal of judges under the Emergency Decree of the 3rd of November, 2007 was unconstitutional and in violation of Article 209 of the Constitution which provides that judges of the superior courts can only be removed by reference to the Supreme Judicial Council.

(b) the signatories were of the view that only a resolution, passed by simple majority, by the National Assembly would be more than sufficient to

authorise the Executive to take immediate obligatory measures under Article 5 and 190 of the Constitution to reinstate the deposed judges.

However, in discussing the validity of the introduction of impugned Article 270AAA, amongst others, the retired judges state that:

(a) "On no principle of State Necessity can one individual purport to make 'permanent changes' in the supreme law adopted by the consensus of the people."

(b) "At most, even if an individualized power to amend were to be conceded, (by the retired judges, I presume, for the sake of argument), such power can only be available during the period of deviation/emergency and, upon restoration of the Constitution, the power to make changes as well as the effects thereof stand completely effaced unless duly indemnified by the Parliament."

As stated, the retired judges only conceded the possibility of the Supreme Court granting the President and/or the CMLA the right to amend the Constitution in periods of constitutional deviation, for the sake of argument. In fact their view is that the amendments introduced by General Zia-ul-Haq and General Pervez Musharraf "…... had become part of the constitution only after they were adopted by a two third majority…..".

On the issue of the legality and justification for conceding the power to amend the Constitution to an all powerful individual such as the President and/or CMLA, in periods of Constitutional deviation, suffice it to say that the line of cases, including the Nusrat Bhutto case of 1977 and the Zafar Ali Shah case of 1999, that conceded such power, did so on the basis of the flawed doctrine of necessity.

The said doctrine, at best, is one of condonation, in good faith of past and closed transactions and certainly not a legal theory for the validation of acts such as the abrogation or subversion of the Constitution or the act of holding the Constitution in abeyance and arrogating to one self the power to amend it, in blatant violation of Article 6 of the Constitution.

However, for the record, it is absolutely crucial to reaffirm that in constitutional law even the idea of 'temporary amendments' is a contradiction in terms. At first sight, such legal reasoning may seem appealing and advance the cause and the immediate concern for the restoration of the Judiciary. In the long run it does not auger well for the rule of law and the rational and consistent development of constitutional law in Pakistan. Commentators must adopt a consistent logical approach to the constitutional issue at hand.

There is no category of 'temporary amendments' in constitutional jurisprudence, for the following among other reasons :

(1) Article 239 of the Constitution provides the one and only constitutionally sanctioned method of amending the Supreme Law - a compact of the federating states of the Union. It therefore stipulates a heavily weighted majority for the passage of an amendment to the Constitution;

(2) Parliament is the sole authority that can make amendments to the constitution. No other person, howsoever high, can arrogate to himself the power to amend the Constitution.

(3) Any purported attempt to amend the Constitution by any other method and/or by any body other than the Parliament would tantamount to subversion and/or abrogation of the Constitution.

All Proclamations of Emergency, holding the Constitution in abeyance, PCOs and Constitution Amendment Orders promulgated during martial law-euphemistically called periods of constitutional deviation -fall within the category of constitutionally prohibited acts.

(4) All purported constituent documents of the extra-constitutional regime are per se ab-initio void and of no legal effect. In the circumstances, there is no question as to their interim validity and legal effect, even during the period of constitutional deviation. And in determining the legitimacy of the actions of the usurper, such as the removal of the judges of the Superior Courts, they must, of legal necessity, be disregarded.

(5) If the Supreme Court of Pakistan cannot amend the constitution, it is not legally possible for it to purport to grant and/or delegate such power to any other purported holder of high constitutional office.

(6) In Achakzai's case the Supreme Court was of the view that the "….freedom bestowed on Parliament…..does not include the power to amend those provisions of the Constitution by which would be altered the salient features of the Constitution. And 'Independence of Judiciary' has been held by the Supreme Court to be a Basic Feature of our Constitution.

Such a distinction is fraught with dangerous consequences for the body of Constitutional Law. This inference has, in major part, also contributed to an anomalous, and self-defeating debate, in the print media and talk shows. The issue, whether a simple resolution and willingness of the executive to follow the mandate of the electorate to reinstate the Judges is sufficient or, an amendment to the Constitution, by a 2/3 majority, is necessary, in order to annul the purported 'temporary amendments', including the Oath of Office (Judges) Order, 2007 and notifications issued pursuant thereto, is a red herring.

The newly elected Parliament must refuse to validate such Acts of a usurper in uniform. In all probability, in accordance with the Muree declaration of the 9th of March, 2008, the Parliament will pass a simple resolution for repudiating the purported amendments to the Constitution and facilitating the resumption of judicial functions by Judges of the Superior Courts.

Pursuant to the passage of the resolution, the Government, by Executive Order, will perform its obligation, under Article 190 of the Constitution, and act in aid of the Judges of the Superior Courts in so resuming their judicial functions. Any attempt to reinstate the judges, as part of an over all package of Constitutional amendments, would only serve to emphasise the fallacious categorization.

The perpetuation of such a constitutionally untenable distinction is more than likely to encourage military adventurers, in the future as well, to impose martial law, abrogate and/or hold the Constitution in abeyance and again secure the power to amend the Constitution from the Supreme Court.

(Mr. Zain Sheikh is an advocate of the Supreme Court)