ISLAMABAD - The federal government told the Supreme Court on Monday that the 1973 Constitution was an ‘uneasy marriage between socialism and Islam’ which could never be successful without amendments, according to media reports.
Federal government counsel Khalid Anwar asked from the Full Court hearing the constitutional amendments case that if military courts could exist in the United States, which has a rigid constitution, then why they could not be set up in Pakistan.
He contended before the 17-judge bench, headed by Chief Justice Pakistan Nasirul Mulk, that US constitution is a template for constitutions of various other countries. He said military courts were necessitated out of unprecedented atmosphere of terrorism.
Monday’s hearing was an interesting exchange on political philosophy and Pakistan’s history. When Khalid 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.
Khalid Anwar narrated history in terms of constitution of Pakistan and said PPP was the giver of the 1973 Constitution and it won a majority on the basis of socialism, not religion, using the slogan of ‘roti, kapra, makan’. Justice Jawwad remarked: Tell us if this country has any constitutional structure or not. Leave other things.
The government counsel argued that basic structure of the constitution does exists but it has not been implemented so far. He said 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. Justice Ejaz remarked that it was not as such and added: Allama Iqbal had said in his letter that socialism is part of Islam.
Khalid said: Constitutional structure determines these parameters. This is meant for some law and it is not a law itself. The constitution in its present shape is far better than in the past. Period of 50 years has elapsed. Supreme Judicial Council could not take action against any judge. Justice Jawwad S Khawaja remarked: You are saying this correct.
The counsel stated there is rigid separation of power between the organs of state in the US and American Supreme Court has exclusive jurisdiction of review. He said: We do not have corresponding provision in the constitution but have Article 175A… (And) there is no implied limitation in the Constitution of Pakistan that says it could not be amended.”
Justice Jawwad remarked: (Whether) constitution is good or bad, we take oath under it. We have to see constitution of our own country rather than any other country. Justice Saqib asked: Can government annul the powers of the superior judiciary? The President cannot remove any judge despite wielding authority for fixing number of judges.
The counsel said the constitution in its present shape was much better than its previous versions. He said: The original structure was far inferior what we have now and this is because of the judgments of the Supreme Court. Returning back to basic structure will bring unmitigated disaster. In the past no one talked about the meaningful consultation between President and Chief Justice for appointment of judges but later it became binding.