The News, 10 June 2010,
ISLAMABAD: The Chief Justice of Pakistan, Justice Iftikhar Muhammed Chaudhry, on Wednesday said that Parliament’s powers to make constitutional amendments and the judiciary’s right to review them could not be restricted.
“It’s all about future, and we have to ensure the rule of law and the supremacy of the Constitution. We should think in a broader sense that the power of judicial review and parliament’s powers to make constitutional amendments cannot be restricted,” the chief justice observed during the hearing in petitions challenging provisions of the 18th Amendment.
A 17-member larger bench of the apex court, headed by Chief Justice Iftikhar Muhammad Chaudhry, was hearing identical petitions, challenging various provisions of the Constitution under the 18th amendment.
Around 16 petitions have been filed in the apex court, mostly challenging the formation of a judicial commission for the appointment of judges to the superior courts under the 18th Amendment.
The chief justice said that the decision of the larger bench in the case should be such that nobody could dare to touch upon fundamental rights.
Hamid Khan, the counsel for the Supreme Court Bar Association, while continuing his arguments submitted that parliament is entitled to legislate, but it is not authorised to amend the basic features of the constitution. He contended that the Indian constitution also has articles, which ban challenging constitution’s amendments; however, Indian courts have taken the notice of these amendments.
Hamid Khan cited judgments of the Supreme Court, including Government of Balochistan verses Aziz Ullah Memon, Supreme Court 1993. He read out some paragraphs of the said judgment, stating that the Constitution provides separation of judiciary from the executive. He further cited that the judgment ruled that the judiciary should not seek aid from executive for separation. He contended that judiciary is the important pillar of the State. The day, the Constitution came, it stands for separation of the judiciary from the executive, Hamid Khan submitted.
At this, Justice Khalilur Rehman Ramday said that there is a Public Service Commission for the appointments of above 17 Grade official, but contrarily, Parliament has been authorized to appoint judges.
“We have a great respect for Parliament; however, the issue relating the judges’ appointment will have to be looked into,” Justice Ramday remarked.At one point, Chief Justice Iftikhar Muhammad Chaudhry observed that the Constitution is a living document; hence, its each and every article should be put into practice, adding the public could be approached through a referendum for their opinions on the constitutional amendment.
The chief justice said that representatives were elected on no-party basis in 1985 general elections. He asked Hamid Khan whether a referendum ever held for Constitutional amendment?’ Hamid Khan, however, replied in negation, saying that rule of law and supremacy of the Constitution must be ensured.
Justice Ramday observed that the referendum is held only for those who sneak into power unconstitutionally. The clause regarding referendum was not enshrined in the Constitution only for ushering a military general to the Presidency.
The chief justice stressed that the powers of Parliament relating to constitutional amendments could not be restrained, adding the elected parliamentarians function under the Constitution. During the course of hearing, Hamid Khan, on the question of review of constitutional amendments, presented extracts from the judgments of Australian and other foreign courts.
The counsel submitted that under the Australian Constitution, there are no substantive limits for constitutional amendments. He submitted that under the Australian Constitution, if an amendment affects the basic principle of fundamental rights, it can be reviewed and annulled.
Citing the Turkish Constitution, Hamid Khan submitted that if a person is convicted, he cannot contest for becoming a member of the Parliament. At this, Justice Khalilur Rehman Ramday interrupted and said Hamid Khan, don’t read this here. “Here it is forbidden like saying this,” he added.
Hamid Khan was still on his legs when the court time got over. The chief justice asked Hamid Khan to conclude his argument by today (Thursday) before interval and asked Kamal Azfar to commence his arguments in the federation review petition in NRO verdict of the apex court.
Other members of the bench included Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawad S Khawaja, Justice Anwar Zaheer Jamali, Justice Khilji Arif Hussain, Justice Rahmat Hussain Jafferi, Justice Tariq Parvez, Justice Mian Saqib Nisar, Justice Asif Saeed Khan Khosa, Justice Ghulam Rabbani and Justice Khalilur Rehman Ramday.
