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Top judges of Pakistan took up some weighty issues on Monday and tried to determine whether or not parliament could declare Pakistan a secular state and under what provision of the law could a constituent assembly be formed.

“Can Pakistan be declared a secular state? If there is a popular demand, then how Pakistan can be declared a secular state,” observed Chief Justice Nasirul Mulk while hearing petitions challenging the 18th and 21st constitutional amendments.

“Can the federal legislature declare Pakistan a secular state?” asked the top judge, who was heading a 17-member bench of the apex court.  “Are there ways other than revolution to change the basic feature of the state?” he further asked.

Advocate Hamid Khan, who is representing different bar associations, said this could be done only through a constituent assembly. “Under what provision of law can a constituent assembly be formed?” Justice Nasirul Mulk shot back.

In the meantime, another judge on the bench, Justice Mian Saqib Nisar, posed another question: “If a political party promises in its manifesto that it will declare the country a secular state after coming to power, can it fulfill its promise if it secures a heavy mandate in the elections?”

He also asked whether all future generations will remain hostage to what had been decided earlier. He further asked how a constituent assembly comes into being. Justice Nisar’s colleague Justice Asif Saeed Khosa, who triggered the debate during the proceedings, said the question is if parliament can declare secularism as the basic feature of the state.

Justice Khosa said Pakistan was created in the name of Islam in 1947 and later in 1949 the Objectives Resolution was passed with the support of East Pakistanis in which Islam was recognised as the basic feature of the state. However, after the dismemberment of East Pakistan, the Bangladeshis framed their own constitution and declared their country a secular state, he said, adding that General Irshad had introduced a constitutional amendment, declaring Islam as the basic feature of the state, but the Bangladesh Supreme Court annulled the amendment.

Justice Khosa, while citing the examples of Turkey and China, said that people and their ideology change with the passage of time. Justice Jawwad S Khawaja, however, said the changes in Bangladesh and Turkey were “revolutionary”.

Hamid Khan said there was a consensus in Pakistan that Islam will be the basic feature of the state.

Justice Khosa said one thing bothered him that all the judges have taken the oath to protect the Constitution and the same Constitution barred them from annulling any constitutional amendment. “Judges cannot go beyond the Constitution. If a policeman oversteps his power, then he is found guilty – the same approach should be applied on all bodies, including judges,” he added.

Justice Khawaja said the people’s representatives in parliament were the guardian of the Constitution. “There is need to examine the circumstances in which the Constitution of Pakistan was framed in 1973,” he added. Justice Azmat Saeed Sheikh remarked that whether under the garb of a constitutional amendment, parliament can destroy the Constitution.

When Hamid Khan contended that the top court in its short in the 18th amendment case had admitted the basic structure of the Constitution, Justice Saqib said the observations of the short order were tentative as it was like a speech.

He said that the short order was issued after four days of lengthy discussion, wherein the court had admitted the supremacy of parliament; therefore the matter was referred to parliament in 2010. However, Justice Khawaja said the matter was kept pending to see if parliament did not accept the court’s proposals, then it would give a ruling.

The hearing was adjourned until today (Tuesday).

Published in The Express Tribune, May 5th, 2015.

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