PESHAWAR: The Peshawar High Court has sought assistance from the counsel of MNA Marvi Memon to ascertain whether the high court has the authority to strike down any provisions or articles in the Constitution.
A two-member bench of Justice Yahya Afridi and Justice Qalandar Ali Khan issued the directives to Memon’s lawyer Omar Farouk Adam on Friday while it was hearing a petition filed by the MNA challenging Article 63-A (1) (b).
The said article states the grounds on which a parliamentarian can be disqualified for defection. Under the provision, a parliamentarian can be disqualified if they vote or abstain from voting in the house contrary to any direction issued by their parliamentary party. The matter put to vote could be the election of a prime minister or chief minister, vote of confidence or vote of no-confidence as well as a money bill and or constitutional (amendment) bill.
Memon challenged the provision in the 18th Amendment on March 2, 2011 when she was a National Assembly lawmaker of the Pakistan Muslim League-Quaid. At moment, Memon is a Pakistan Muslim League-Nawaz MNA.
She made the Federation respondent through the Ministry of Law, Justice and Parliamentary Affairs, while all four provincial governments have been made respondents through their law secretaries.
The petitioner states Article 63-A (1) (b) breaches guaranteed fundamental rights and violates representative government as well as Articles 4, 14, 17, 19, 25, 55, 63 (2), 66, 95 and 127 of the Constitution.
In Friday’s hearing, Additional Attorney General for Pakistan Syed Attique Shah informed the court that under Article 199 of the Constitution, the high court has no authority to strike down constitutional provisions.
Shah further said Memon’s petition is not maintainable because the provision was passed by the Parliament after a thorough discussion and agreement of all members. Even the Supreme Court has not struck down any provisions, said Shah.
However, Memon’s counsel Omer Farouk said the petition has already been admitted for a regular hearing and notices have been issued by the court to respondents so there is no question regarding the petition’s maintainability.
Farouk added he would provide relevant materials and judgments to the court for assistance in the case.
The court then directed him to appear at the next hearing and also assist the court on whether it has the authority to strike down any provisions or article of the Constitution. The next hearing date was fixed for February 4, 2015.
Published in The Express Tribune, December 13th, 2014.
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