ISLAMABAD: The Supreme Court on Monday observed that the Constitution has a basic structure which must be protected in any case.
A 17-judge bench headed by Chief Justice Nasirul Mulk resumed hearing of the 18th constitutional amendment and 21st constitutional amendment case.
Supreme Court judge Justice Ejaz Afzal Khan observed that though the basic structure is not being protected through provisions of the Constitution it has been established historically that the Constitution has the basic structure which must be protected in any case.
Referring to the several constitutional amendments, Justice Ejaz said this shows the people of Pakistan and parliament have recognised the basic structure; therefore amendments were done time to time for the restoration of the basic structure.
Further, the chief justice questioned how the parliamentary committee on judges’ appointment is violating the independence of the judiciary and if it does, can a constitutional amendment be struck down?
Hamid Khan, counsel for several bar associations, contended the parliamentary committee has not only violated the independence of judiciary but also opposed the separation of power as well, therefore, the committee should be abolished.
Justice Asif Saeed Khosa said before the passage of 18th amendment the parliamentary committee, which was constituted to propose constitutional amendments, had admitted that the Constitution has a basic structure and they are working for its restoration.
However, he said on the one hand the parliamentarians were working for the restoration of the basic structure but on the other they are being accused of violating it.
Justice Khosa also observed that manners have changed for the protection of independence of judiciary but values remain the same. He said that the appointment of judges are being made by Senate in the United States, and questioned if we can say that the independence of judiciary is not secure in the US.
Another member of the bench Justice Sheikh Azmat Saeed said: “Following the American system, the parliamentary committee has been given a role in the appointment of judges, but its role should be extended to the appointment of other officers, including the army.” “There should be no pick and choose,” he added.
Justice Mian Saqib Nisar while referring to Article 239/5 of the Constitution asked the counsel for bar associations if this provision was a part of original Constitution or was it added later on. Article 239/5 of the Constitution says that constitutional amendments cannot be challenged in any court of law.
Hamid Khan replied that it was added through 8th constitutional amendment in 1985. Justice Khosa replied that probably, when the Supreme Court had recognized that it has the power to examine the constitutional amendment this clause was added later on to counter such kind of move by the apex court of Pakistan.
Meanwhile, the federal government has engaged renowned lawyer Khalid Anwar to defend the establishment of military courts through the 21st constitutional amendment.
It is to be noted that the federal government led by PPP had engaged a legal team, headed by Wasim Sajjad, to defend the 18th constitutional amendment but no one was appearing before the court on behalf of that legal team. The hearing of the case has been adjourned till Tuesday (today).
Published in The Express Tribune, April 28th, 2015.