SC asserts its right to review constitutional amendments

Qaiser Zulfiqar May 24, 2010

ISLAMABAD: The Supreme Court has asserted its right to review constitutional amendments at the first hearing of the 15 petitions challenging some provisions of the newly crafted eighteenth amendment.

Reprimanding the government for not having submitted its reply to the court notices, the apex court adjourned the hearing till May 31. And in the case regarding the review petitions filed by the government challenging the National Reconciliation Ordinance (NRO), the court has given the government’s counsel Kamal Azfar till June 7 to study the relevant Swiss laws. The 17-member larger bench presided over by Chief Justice Iftikhar Muhammad Chaudhry comprised Justices Javed Iqbal, Shakirullah Jan, Tassaduq Hussain Jilani, Nasirul Mulk, Raja Fayyaz Ahmed, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khwaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Rehmat Hussain Jafferi, Tariq Pervez, Mian Saqib Nisar, Asif Saeed Khan Khosa, Ghulam Rabbani and Khalilur Rehman Ramday.

The counsel for the first petitioner Nadeem Ahmad sought the court’s permission to argue some initial points but the chief justice did not grant him leave. Addressing senior lawyer Akram Sheikh, Chaudhry remarked that the government should furnish its reply first, as the rules specify that the accused has to submit a rejoinder on a court notice. “How we can proceed when, despite the issuance of notices to the federation, the rejoinder to the points submitted in the petition has not been submitted?” asked Chaudhry. “It appears from the government’s attitude that they are not serious in this regard.” One of the federation counsels Dr Abdul Basit argued that petitions challenging the 18th amendment are futile because the constitution says amendments made by the parliament can’t be challenged in the Supreme Court.

Therefore, he argued, these petitions should be disposed off. But the bench did not buy this line of reasoning. “The right of the higher judiciary to review still stands,” said Chaudhry. “However, the federation has yet to furnish their reply therefore no action can be taken.” Meanwhile, attorney general Maulvi Anwarul Haq insisted that legislation is the prerogative of the parliament and asked the bench for time to debate the finer points. However, Chaudhry said the federation could submit the record of the meetings of the parliamentary committee for constitutional reforms as well as the record of the debate in both the houses on the 18th amendment. “Don’t consider this an order of the court; this is only to assist the court,” he said. Meanwhile, Habib Wahabul Khairi objected to the Haq’s appearing on behalf of the federation since, Khairi argued, Haq was a PCO judge and therefore not entitled to be appointed Attorney General of Pakistan.

However, Chaudhry said the issue would be dealt with later and, at the request of AG, adjourned the case till May 31. The same bench was also hearing the case regarding the National Reconciliation Ordinance (NRO) verdict, which has taken a surprising new twist. The federation’s counsel Raja Abdul Ghafoor has now asked for permission to withdraw the government’s review petition. All the judges were taken aback by the new move, which is widely being viewed as a stalling strategy on part of the government. Ghafoor’s argument was that the first review petition against the NRO verdict was filed by Masood Chishti, which was subsequently returned by the registrar’s office.

The registrar had then said that only lawyers arguing a case were entitled to file review petitions. Subsequently, the government got its lawyer Kamal Azfar to file another review petition. Now Ghafoor has filed an appeal, expressing the desire to withdraw the earlier review petition. At this, Chaudhry warned Ghafoor of severe consequences. “You should review your appeal and get new directions from your client,” admonished Chaudhry. “We have constituted a larger bench in light of these review petitions. If we return your petition, it could create more problems for you,” the CJ observed. Initially, even Azfar’s appeal was returned with objections.

When he took to the rostrum, Azfar informed the bench that he had changed the objectionable sentences in his plea. “We will also hear those objections because you also filed an appeal against those objections, which have been fixed for hearing before the larger bench,” remarked Chaudhry. Pleading that he needed time to study Swiss laws, Azfar asked the court for two weeks’ time, a request Chaudhry shot down before adjourning the hearing till June 7. Meanwhile, a five-member bench headed by Mulk will continue hearing today the non-implementation of the SC’s NRO verdict case. Law minister Babar Awan is to present the government’s justification for not having written to the Swiss officials for reopening cases against President Asif Zardari.

Published in the Express Tribune, May 25th, 2010.

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