Hafeez Pirzada files petition against 18th Amendment

ISLAMABAD: One of the architects of the 1973 constitution, Barrister Abdul Hafeez Pirzada, on Tuesday filed a constitutional petition in the Supreme Court seeking a review of the 18th Amendment.

The amendment was unanimously passed by both houses of parliament last month. The petition was filed under Article 248 of the 1973 Constitution. The federation of Pakistan through the Ministry of Law and Justice has been made the respondent in the petition. Advocate M S Khattak filed the petition on behalf of the petitioner.

The petitioner also asked the apex court to club his petition with fifteen other petitions being heard by a 17-member bench of the apex court. “The impugned legislation leading to a constitutional amendment is the violation of Articles 17, 19 or 25 of the 1973 Constitution, which relate to fundamental rights. It cannot be passed by the Parliament in derogation of the clear restrictions imposed by Article 8 (2) on the power of the state to pass any law,” Pirzada told The Express Tribune.

Therefore, the restrictions imposed by Article 8 (2) clearly apply to the Parliament regarding laws which are in conflict with fundamental rights and any such law enacted by the Parliament, to the extent of such contravention, would be void, he added. In the petition, Pirzada said that the Supreme Court does not claim the right to strike down any provision of the Constitution but does claim to interpret the Constitution even if a provision of the Constitution is seeking to oust the jurisdiction of the court. That Articles 238 and 239, which confer on the Parliament the power to amend the Constitution, cannot be read as expressing the death wish of the Constitution. In exercising its power, the Parliament cannot arrogate to itself the role of the official liquidator of the Constitution, the petitioner said.

Pirzada also told The Express Tribune that the Australian electorate had approved only five out of 32 changes in the constitution proposed by their Parliament in the last 95 years. “At the end of 1973 the Australian Parliament passed by an impressive majority two proposals for constitutional amendments, but both the proposals were rejected by equally impressive majorities by the people in every single state in Australia,” he said. On Monday the Supreme Court sought transcripts of the nine-month deliberations of the parliamentary committee which hammered out the 18th Constitutional Amendment and the subsequent debate in the National Assembly which adopted it unanimously.

The petitions against the 18th Amendment have been filed by the Supreme Court Bar Association, Pakistan Lawyers’ Forum, Lahore High Court Bar Association, Rawalpindi Bar Association, District Bar Associations of Rawalpindi, Sanghar, Gujrat and Sialkot, al Jihad Trust, Ijazul Haq, Watan Party chairman Zafarullah Khan, Sardar Khan Niazi, Shahid Orakzai, M Kowkab Iqbal and Advocate Nadeem Ahmed. The next hearing of the case is on May 31.

Published in the Express Tribune, May 26th, 2010