Do Hafeez Pirzada’s arguments contradict his 1976 speech?

Barrister Pirzada appears to have altered his stance on whether the Parliament is empowered to amend the Constitution.

ISLAMABAD: One of the architects of 1973 Constitution, Barrister Abdul Hafiz Pirzada appears to have, over the years, altered his stance on whether the Parliament is empowered to amend the Constitution and if the courts can strike such a move down.

Pirzada is one of the petitioners challenging the recent 18th Amendment – a case that is being heard by a 17-member larger bench of Supreme Court of Pakistan.

Concluding his arguments in the said case, he had prayed that the court should strike down all controversial clauses of the 18th Amendment because, “this Parliament has no jurisdiction to amend the Constitution.”

But he himself before taking charge as Finance Minister in his written speech on September 3, 1976, had stated on the floor of the House: “No court has any jurisdiction to strike down the amendment which is not conferred on it by the Constitution.”

“Therefore, the jurisdiction of the High Courts and Supreme Court has been made subservient by Article 175 which formed part of the Constitution the day the amendment [fifth amendment] was passed on April 10, 1973,” Pirzada had argued.

When asked to clarify the contradiction, Mr Pirzada told The Express Tribune that  Article 184 of the Constitution allowed citizens of Pakistan to challenge any illegal clause of any amendment passed by the Parliament.

“This Parliament came into being in 2008; it has no mandatory powers to amend the Constitution because its manifesto could not allow it (Parliament) to introduce new amendments in the Constitution,” he explained.

Concluding his arguments in the said case Pirzada said: “The impugned legislation leading to a constitutional amendment is violation of Articles 17, 19 or 25 of the 1973 Constitution, which relate to fundamental rights. It cannot be passed by the Parliament in derogation of the clear restrictions imposed by Article 8 (2) on the power of the state to pass any law.”

However, contrary to these arguments, Pirzada had said on the floor of the House in 1976 that “The Constitution has laid down that the Parliament is supreme. It is the law-giver. It is the maker of laws and it can amend the laws of all kinds written in the Constitution.”

“The writ of the National Assembly is the highest writ and no organs of the state including the Supreme Court can strike down any amendment passed by the Parliament,” Pirzada had said.

Meanwhile, a petition has been filed by various citizens consisting of legislators, journalists, lawyers, civil society members praying the Court that Pirzada’s petition be disposed of since no occasion for invoking the basic structure or basic features doctrine has arisen on account of the amendments to the Constitution.

They also appealed to the court to take notice of the changing stance of the leading lawyer, giving an opportunity to Salman Akram Raja to argue on the issue.

Published in The Express Tribune, August 12^th, 2010.