ISLAMABAD - The Supreme Court was informed Wednesday that the 21st Amendment has directly affected over one dozen articles of constitution and also curtailed the power of the apex court.
Full Court of Supreme Court, headed by Chief Justice Nasir-ul-Mulk, was hearing petitions against the 18th and 21st Amendments. The arguments on 18th amendment have been completed and the counsel of Lahore High Court Bar Association (LHCBA) started arguments on 21st Amendment.
Advocate Abdul Hafeez Pirzada arguing on the 18th Amendment, apprised that Hameed Nizami in 1952 wrote an editorial, which said parity principle for the members of parliamentary committee, that was given task to draft 1956 Constitution, would be disastrous for Pakistan. He said: “That proved true after two decades, when East Pakistan separated from us.”
Pirzada also contended that parliament is not omnipotent. He said in England the parliament goes for convention on important issues, adding a British jurist A V Dicey’s policy of parliamentary sovereignty has gone in UK. Agreeing with the statement of learned counsel Justice Jawwad S Khawaja remarked the parliament even in England is not considered omnipotent.
The counsel lauding the role of judiciary stated it (SC) is the best institution, while the armed forces are a disciplined force. The judges of superior judiciary have taken oath to protect, preserve and defend the constitution. Pirzada stated: “Our parliament is still not mature and it would come with the passage of time, while the Supreme Court is a permanent institution and is mature.” The court has to decide about the right and wrong and it was up to judiciary to interfere, but it should exercise its power with care, he said.
Pirzada earlier briefed about the constitution’s history and explained the difficulties the then PPP government faced in framing of 1973 Constitution. He submitted the preamble is the basic structure of constitution as it is the most relied upon and undisputable document. He said except procedural there was no big difference in amendment of law and constitution.
After the break Hamid Khan, appearing on behalf of LHCBA, contended that over one dozen articles of the Constitution 1973 are directly affected by the 21st Amendment, which include 2A, 8(1)(2), 10, 10A, 25, 175(3), 184(3), 185, 190, 199(2), 245, sub-Part-III of Part I of First Schedule, and Fourth Schedule particularly item 55.
The counsel said besides the 21st Amendment would also in some way affect other provisions of the Constitution and curtail the power of the Supreme Court. He said that the 21st Amendment disturbs, undermines, and perverts the scheme and structure of constitution, particularly the tri-cotomy of power, separation of judiciary from executive, independence of judiciary as organ of state, excess to justice to citizens regarding enforcement of fundamental right, fair trial and due process guaranteed to people in Pakistan.
Giving history of the military courts in Pakistan since its creation, the counsel stated that the establishment of military court is not a new phenomena in Pakistan, these were set up during Martial Laws and the democratic regimes. He said first time military courts were established in 1953 to crush the anti-Ahmedya movement in Lahore, then in Oct 1958 when first Martial Law was declared, which remained till June 1962.
Similarly, he said on 25th March 1969 General Yahya Khan declared Martial Law, which remained till 20th December 1971. The military court in East Pakistan held large number of trials. He said in April 1977 mini Martial Law was introduced in Lahore, Karachi and Islamabad. The military courts were to be set up but it was challenged in the High Court in Darvesh Arabi, which the court declared illegal.
He said on 5th July 1977 the longest repressive period in Pakistan the Martial Law remained for 8 1/2 years. Media persons and civil society groups were tried in special courts. On 20th November 1998 an ordinance on Pakistan Armed Force acting in aid of civil power was promulgated. It was applied in such areas of Sindh where the armed forces were called to act in aid of civil power. Hamid Khan said that before expiry of that ordinance that was struck down by the Supreme Court in the Liaquat Hussain case.
On the court query the LHCBA counsel apprised that the apex court upheld Martial Laws in Dosso, Asma Jillani and Nusrat Bhutto. However, he stated that in Mehram Ali and Liaquat Hussain cases it was observed that the military courts were established as the judicial system had failed.
The hearing is adjourned till today.