ISLAMABAD: A dictator included an article in the constitution to snatch the Supreme Court’s powers of judicial review of constitutional amendments on which the federation’s lawyer are depending in their arguments in defence of the 18th amendment, Justice Jawad S Khawaja observed on Monday.
Yousaf Leghari, Advocate-General (AG) of Sindh, argued that no court has the right of judicial review of any constitutional amendment. He was arguing before a 17-member larger bench of the apex court hearing identical petitions challenging certain parts of the 18th amendment.
The basic structure only comprises the federation and its three pillars, whereas the petitioners are trying to revive the “Law of Necessity” in the name of basic structure, Leghari pleaded to which Justice Asif Saeed Khosa remarked that no one should have objection to the petitioners.
He also remarked that it is not necessary to say that either the Supreme Court Bar Association or the Pakistan Bar Council become petitioner in such cases, any citizen can file a petition regarding the constitution.
Justice Tariq Pervez, Justice Shakirullah Jan and Justice Raja Fayyaz pointed out that the documents submitted by AG Leghari were full of mistakes.
“You have written that whether the court created the parliament or the parliament created the court,” Justice Raja Fayyaz remarked upon which Leghari tendered an apology for making mistakes in the document.
Justice Jawad Khawaja remarked that the advocate-general Sindh and other federation lawyers are emphasising to seize the Supreme Court’s powers of judicial review under Article 239 of the constitution which was included by a dictator.
“General Ziaul Haq through the same article wrote that the judges of the Supreme Court cannot see the amendments and you people are emphasising upon it vigorously. However, it is time everybody should say that whatever was included in the constitution by the dictator, is being erased,” he said.
“We bring democracy and the courts endorse dictatorships” Leghari replied to which Justice Jawad said, “The parliament has also been doing the same”.
“How many articles in the constitution were included by dictators and were endorsed by the parliament?” Chief Justice Iftikhar Muhammad Chaudhry asked the AG.
Leghari submitted that the objective resolution was included in the constitution and it had a purpose to empower Punjab.
“If you think that the objective resolution was wrong then why don’t you throw it out of the constitution,” Justice Jawad observed.
Later, the chief justice adjourned the hearing till Tuesday (today).
Published in The Express Tribune, August 31st, 2010.
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