In larger interest: Top court ‘bound to protect democracy’

SC hears arguments against 18th and 21st constitutional amendments

ISLAMABAD: The Supreme Court’s Justice Asif Saeed Khosa has said that in case of sheer injustice the top court is bound to intervene for the protection of democracy and out of public interest.

His observation came during the hearing by a 17-judge bench of the apex court of petitions against the 18th and 21st constitutional amendments.

Justice Khosa said that during the reign of military dictators when parliament was under their thumb, the court protected the Constitution on the basis of its basic structure. In the current case, he said, parliament had passed the constitutional amendment unanimously.

He observed that though Article 239-5 of the Constitution had come under discussion in the court, it had never been directly challenged in court. The provision bars the apex court from striking down any constitutional amendments.

Another judge, Justice Jawwad S Khawaja, questioned whether or not the Constitution of the country had a basic structure, as pointed out by Justice Khosa. Advocate Hamid Khan, who represents different bar associations in the case, said the issue of the constitution’s basic structure was still open.

Justice Mian Saqib Nisar asked the counsel to inform the court about the basic features of the Constitution. Chief Justice Nasirul Mulk has told the lawyer to conclude his argument on Wednesday (today).

A lawyer has challenged Article 239/5 of the Constitution in the apex court. Zulfiqar Ahmad Bhutta filing the petition under Article 184(3) said this provision violates the “basic structure” of the Constitution and should be declared invalid.

A day earlier, Justice Khosa had questioned that when all the judges had taken oath to protect the Constitution, how could the same Constitution bar them from annulling any constitutional amendments.

Published in The Express Tribune, May 6^th, 2015.