ISLAMABAD: Calling the 1973 Constitution an uneasy “marriage between socialism and Islam”, a top lawyer representing the federal government said on Monday that such a union was doomed from the start.
Counsel Khalid Anwar’s remarks came at the start of his arguments before the 17-judge bench, hearing the 18th and 21st constitutional amendment cases.
The bench, headed by Chief Justice Nasirul Mulk, reminded the attorney that the Pakistan Peoples Party (PPP) was the founder of the 1973 Constitution and the party won a majority on the basis of its ‘roti, kapra aur makan’ slogan and not on the basis of religion.
The court was told that Article 2 of the Constitution mentions Islam while Article 3 stated the elimination of exploitation, which was copied from Article 12 of the Soviet Union’s 1936 Constitution.
Monday’s hearing was an interesting exchange on both political philosophy and the country’s history. When Anwar referred to the sociological philosophies of Karl Marx, Justice Azmat Saeed Sheikh pointed out that he should also mention Quaid-e-Azam’s speeches. Moreover, while talking about a letter written by Allama Iqbal, Justice Ejaz Afzal Khan said egalitarianism is also a part of Islam.
On military courts, Anwar pointed out that military courts could be established in the United States even though the country’s Supreme Court has immense power. “So then why can military courts not be established in Pakistan, especially since the apex court draws its power from the Constitution?” he asked.
The counsel said the Supreme Court is nothing except a moral authority as the apex court has no private force to implement its directions and it relays on executive for this purpose.
Anwar said self-accountability is no accountability as no judge was ousted from the service in view of Article 209 of the Constitution in the last 50 years.
The counsel, while opposing petitions against the 18th and the 21st constitutional amendments, stated that parliament is an integral part of the state and no one is independent other than parliament, because it is chosen by the people of Pakistan.
The fundamental rights, he noted, are a part of the Constitution but these can be suspended through promulgation of emergency, adding that democracy is the basic structure of the Constitution.
The attorney while referring Article 199(3) of the Constitution said the jurisdiction of the high court is barred with regard to armed forces. However, the bench pointed out that it was not the part of the original Constitution of the country.
While referring to Article 186, he said that it is the executive function, wherein the top court gives legal advice to the executive on any particular matter.
Anwar also referred the SC of the United Sates, wherein, leave was granted in 80 appeals against high courts’ verdicts
He said the apex court’s chief justice’s appointment is purely the executive’s power but Justice Saqib Nisar maintained that it is the mandate of the law that the senior most judge will be appointed as the chief justice.
Justice Asif Saeed Khosa while referring to Article 184 said same clause gives power to the apex court to give direction regarding the enforcement of fundamental rights. He asked that in view of this Article, whether the SC has the authority to strike down something without having lawful authority.
Published in The Express Tribune, May 19th, 2015.
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