Pause, sirs, and ponder

Pause, sirs, and ponder - The NRO was such an easy target that a single shot (Articles 4, 8 and 25 of the constitution) was enough to demolish it. A fusillade from heavy cannons (Articles 62 (f), 63 (i and p), 89, 175, and 227) has created problems.

The clauses of Articles 62 and 63 cited now constitute part of Ziaul Haq�s arbitrary amendments. They have never been debated by a representative assembly and have been consistently denounced by democratic opinion....whose revival in its original form is the battle cry of all democratic parties, is like quoting a PCO judge�s ruling before today�s independent judiciary.

Now, the debate over certain parts of a national constitution being outside parliament�s authority to amend them has been going on in Pakistan, India and Bangladesh for over 40 years (Indian Supreme Court verdicts of 1967, 1973 and 1975; Pakistan Supreme Court verdicts of 1963, 1997 and 2000). Professor Conrad, the German scholar who has done much to promote this principle, has succinctly put it thus: 'Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.'

In any case the issue before the Supreme Court was not an amendment to the constitution that would have attracted the basic features theory. The issue before it was an ordinary presidential ordinance. By invoking Article 227 in the present case the Supreme Court seems to have put Islamic injunctions in command of the whole constitution. Quite a few lawyers argue that this amounts to overruling the court�s judgments in the Hakim Khan (1992) and Kaneez Fatima (1993) cases.

[thanks Beena]