SC can’t ‘read in’ or ‘read out’ the Constitution, says Naek

Contends that apex court can strike down a law violative of fundamental rights

Hasnaat Malik March 01, 2018
Apex court says police laws across the whole country needed to be homogeneous. PHOTO: PPI

ISLAMABAD: Former law minister Farooq H Naek has contended that the superior judiciary can strike down a law, if parliament is not competent to make it or if the law is violative of fundamental rights, but the Supreme Court has no power to ‘read in’ or ‘read out’ the Constitution.

Naek said this on Thursday while representing the Sindh government before the Supreme Court’s three-judge bench which was hearing the provincial government’s appeal against the Sindh High Court’s (SHC) order to retain Sindh Inspector General Police (IGP) AD Khawaja.

Chief Justice of Pakistan (CJP) Mian Saqib Nisar, who was heading the bench, asked Naek three questions -- Whether the SC can strike down a law, if the parliament is not competent to do so; whether the SC can strike down a law, when it will be violative of fundamental rights and whether the SC can strike down a law if it conflicts with other constitution provisions.

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While answering in the affirmative with regard to the first two queries, the counsel the third question involved a ‘grey area’ and a reply would differ from case to case. “The courts cannot ‘read in’ or ‘read out something’ in the Constitution,” he said while referring Justice Ajmal Mian’s judgment.

The CJP noted that there are 15 tools to interpret the law. “We have acknowledged several times that parliament is supreme to make the laws but we can interpret them,” he said, adding,  “The SC strikes down the laws in very rare cases; otherwise it tries its best to save a law.”

He told Naek the bench was asking him such questions because he is a senior parliamentarian and the Senate’s former chairman.  The lawyers, who were sitting in the courtroom, believe that the bench was commenting on the criticism by certain groups regarding the SC’s recent judgment in Election Act case.

In the said judgment, the SC has declared that the person who is not qualified under Articles 62 and 63 of the Constitution cannot become head of a political party. Another judge Justice Umar Ata Bandial lamented that despite the passage of decades, the Council of Common Interest (CCI) could not become a powerful institution.

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IGP’s posting

Naek contended that the SHC's interference in the posting of the IGP was a violation of the 18th Amendment. The CJP said the court was considering forming a larger bench with the representation of at least three provinces to examine the constitutional point.

“The notice can also be issued to all advocate generals,” he added. The bench later issued a notice to the attorney general for Pakistan and adjourned the hearing till March 7.

Dual nationality

The same bench on Thursday gave one last opportunity to bureaucrats to share their details about dual nationalities within ten days, warning that appropriate action will be taken against them for disregarding the court’s order.

Earlier, the court was informed by the Establishment secretary that 204 of 33,000 officers had admitted to having dual nationalities. Expressing surprise over the data, the bench summoned National Database Registration Authority (NADRA) to help track such bureaucrats.

In the course of the hearing, the CJP asked whether the authorities had investigated suspended SSP Rao Anwar's nationality status.

The establishment secretary said it came under the jurisdiction of the provincial government. Sindh Additional Attorney General Qazi Shahryar said he was not aware if Anwar was a dual national.

The CJP said the Sindh government should have checked Anwar’s travel history. The top court proceeded to summon NADRA director-general (DG), Immigration DG, Passport DG and other provincial secretaries.  The hearing of the case was adjourned until March 4.


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