ISLAMABAD: “Our country can become secular if the Parliament has unlimited authority to amend the Constitution,” Chief Justice Iftikhar Muhammad Chaudhry remarked on Monday when the federation’s consel argued that the Parliament enjoys unlimited powers to amend the Constitution.
“If the parliament says that there is no religion, would everybody agree,” the Chief Justice asked the consel.
Two lawyers of the federation, Iftikhar Ahmad Mian and Khurshid Ahmed Sudhi, completed their arguments in defence of the 18th constitutional amendment before the 17-member larger bench of the Supreme Court headed by the chief justice on Monday.
Another response to Iftikhar Mian’s argument that the Parliament enjoys unlimited powers to amend the Constitution was Justice Khalilur Rehman Ramday’s rhetorical query that since the Parliament in Britain has declared gay marriage valid, was it possible in Pakistan.
Iftikhar Mian responded that the Parliament cannot make any amendment contrary to the injunctions of Islam, to which Justice Ramday observed: “It is proved then that the authority of the Parliament to amend the Constitution is limited and it is rightly written in the Constitution that no amendment can be made against the teachings of Islam – but nonetheless a bar can be imposed.”
On the query from Justice Tariq Pervez, the counsel submitted that the Parliament can amend Article 2-A of the Constitution with a two-thirds majority, to which Justice Javed Iqbal observed that this was a contradiction of the earlier arguments presented by another federation lawyer.
After him, Sudhi, while arguing on special seats for minorities, submitted that two elections have been held in the country under the new system and no one had challenged it – and even the Supreme Court while reviewing the 17th amendment did not reject it.
He further submitted that members of the minorities can even contest elections on general and the reserved seats are additional.
Later, Advocate Shahid Hamid, the counsel for the Punjab government, started his arguments in defence of the 18th amendment and pleaded that that a Parliament session should be convened next week to deal with the crisis in Balochistan over the appointments of judges.
The chief justice inquired from the Attorney-General for Pakistan (AGP), Maulvi Anwar-ul-Haq, how the judges in Balochistan and additional judges in Khyber-Pakhtunkhawa and Punjab would be confirmed given the circumstances.
The AGP told the court that he had consulted the prime minister, law minister and law secretary in this regard and a decision would soon be taken.
“We have no intention to keep this case in abeyance,” Justice Jawad observed, while the chief justice cautioned: “There can be a breakdown in Balochistan after September 5; therefore the federation should make all arrangements to deal with this crisis”. “The court can even issue judicial orders on this issue” Justice Tassaduq Jilani observed.
“What about those steps which the Supreme Court declared null and void in its July 31 judgment; the Parliament has not ratified that decision till now” the chief justice observed.
Shahid Hamid, while presenting his formulations on Article 175-A, submitted that this new article does not affect independence of the judiciary, and even if it does all sub clauses can be harmonised. He said the constitutional committee did not receive even a single suggestion to maintain the previous system of judges’ appointment.
“The judiciary may issue orders to formulate the rules for the Judicial Commission; we have no objection to it,” Hamid pleaded to which Justice Ramday asked: “Under which law does the court have the jurisdiction to issue such orders.” Hamid had no answer, but said that the concept of basic structure is acceptable at all the levels.
His arguments were still continuing when the Chief Justice adjourned the hearing till today due to lack of time.
Published in The Express Tribune, August 17th, 2010.
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