Scope of judicial review can’t be restricted: CJP


Qaiser Zulfiqar June 09, 2010

ISLAMABAD: Chief Justice of Pakistan Iftikhar Chaudhry hinted on Wednesday that the 17-member bench hearing the petitions challenging the 18th amendment would deliver a verdict which would scuttle any possibility of future unconstitutional ventures. “A 17-member bench decision should be such that no one can overrule it or use it to validate extra constitutional steps,” he said.

He said that the scope of judicial review should not be restricted but widened and the verdict would be such that no one would dare suspend fundamental rights again.

Petitioner Supreme Court Bar Association’s counsel Hamid Khan took up his arguments from where he’d left off on Tuesday. He said that in certain countries such as Belgium, parliaments were dissolved and the constitution abrogated while public opinion was sought through a referendum for bringing about constitutional amendments.

However, Chaudhry pointed out to him that in Pakistan, referenda had only been used to elect presidents. Meanwhile, Justice Khalilur Rehman Ramday said that constituent power could be drawn by appealing to the people. He said there was no need to abrogate the constitution as referenda were not meant to help elect generals only. Here, Justice Saqib Nisar interjected that it was not possible to abrogate the constitution since article six of the constitution, as amended by the 18th amendment, described such offence as treasonable.

The chief justice also said that the court had no quibble with the legislature’s powers to make laws but lawmakers were still bound to act according to the constitution. Khan also cited various Indian, Bangladeshi and Turkish verdicts, which stated that the judiciary should defend its independence itself and should not seek the help of the executive. “A special procedure is followed to ensure the appointment of a grade 17 officer is apolitical but in the case of judges, this principle is ignored,” wondered Ramday. “This court essentially holds the Parliament in the highest esteem but the independence of judiciary will be questionable when judges’ appointments rest with legislators.” The notion of the independence of the judiciary, he insisted, depended on the transparent appointment of independent judges.

Citing Indian, German, American and Austrian examples, Khan then pointed out that courts around the world have set aside amendments in conflict with the basic features of their respective constitutions. “The political parties did not mention in their manifestos that they intended to bring about such constitutional amendments; as such, the present parliament is not a constituent assembly and its functioning should thus remain governed by the constitution,” he argued.

Khan also said that according to the 1973 constitution, the judiciary was to automatically stand separated from the executive by 1987, even in the absence of formal recommendations. The recombining of the two pillars, he said, was against the basic structure of the constitution. He also pointed out that article 160 placed a bar on discussions regarding the conduct of judges in the Parliament, a provision he said was added to ensure the independence of judiciary.

The SCBA lawyer is expected to conclude his arguments today (Thursday), after which the 17-member bench is to take up the review petition filed against the apex court’s December 16, 2009 verdict against the NRO.

app with additional reporting by Qaiser Zulfiqar

Published in the Express Tribune, June 10th, 2010.

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