ISLAMABAD: Tuesday saw the continuation of subtle signaling between the government and the judiciary. “Wherever significant decisions are delivered, amendments are made,” announced Justice Khalilur Rehman Ramday. “The courts in every country deal with the central issue and settlements are worked out later.”
Ramday was part of the 17-member Supreme Court bench hearing the petitions challenging parts of the 18th amendment. Petitioner Supreme Court Bar Association’s counsel Hamid Khan took up his argument from where he’d left off on Monday. He argued that article 175-A goes against the basic structure and features of the constitution that have already been enunciated by the Supreme Court in its various judgements.
To support his claim, he cited SC judgements in the Zafar Ali Shah case, the Wukla Mahaz Ittehad case and the Al-Jihad trust case, which have held the fundamental features of the constitution to be provisions relating to fundamental rights, the parliamentary form of government, federalism, the independence of the judiciary and Islamic provisions. These features, argued Khan, cannot be altered.
Khan also said that having a parliamentary committee appoint judges is a concept alien to the world and that it will politicise the process of judicial appointments. “The concept of judicial commissions exists in many parts of the world but the fact of the matter remains that nowhere are parliamentarians members of such commissions,” observed Justice Saqib Nisar. But Chaudhry was one step ahead. “Have courts in Pakistan ever declared a constitutional amendment null and void?” he asked. “The power of judicial review belongs to the superior courts and they have examined several constitutional amendments from time to time but they have never struck the amendments down,” admitted Khan. “However, in India, it has happened more than once, most recently, with the 25th amendment.”
“But our constitution is different from the Indian one,” said Justice Javed Iqbal. But Justice Khalilur Rehman Ramday was unperturbed. “Wherever significant decisions are delivered, amendments are made,” he reassured his colleague. “In every country, including Pakistan, courts have delivered judgements, which are then followed by fresh legislation or appropriate amendments to the constitution; we need not worry in this regard.”
But Khan continued pushing his original point. “If a constitutional amendment is in conflict with the original provision of the constitution and they cannot be reconciled with each other, the original provision will prevail,” he argued.
Khan also told the court about the South African example, which he said was where the concept of the judicial commission was imported from. “While the judicial commission in South Africa appoints Supreme Court judges as well as magistrates, the key difference is that they have a presidential form of governance where the parliament does not interfere in governance,” explained Khan. “Since ours is a parliamentary form of governance, a parliamentary committee cannot be authorised to appoint judges,” he argued.
The lawyer also took exception to the inclusion of the law minister in the commission. According to the 18th amendment, said he, the prime minister is already a consultee. “The law minister is part of the premier’s cabinet so there’s no justification of having him on the commission.”
Earlier, the court directed attorney general Anwarul Haq to provide petitioner Hafeez Pirzada, who is an architect of the 1973 constitution, with records of the parliamentary discussions regarding the 18th amendment. Pirzada had complained to the court that he was not being provided with the same.
The hearing of the case will resume today (Wednesday).
Published in the Express Tribune, June 9th, 2010.
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