ISLAMABAD - The politicised judiciary cannot be the guardian of fundamental rights and would lead to the deprivation of the people’s rights.

Hamid Khan, representing various bar councils, including SHCBA, said this while arguing his case before a Full Court of the Supreme Court, headed by Chief Justice Nasir-ul-Mulk, here on Wednesday. The Full Court is hearing various petitions against the 18th Amendment.

The counsel contended that the process of removal of judges through parliament, which was in the 1952 Constitution, was not included in 1973 Constitution but the constitution framers adopted the Supreme Judicial Council, which deals with the removal of judges from 1962 Constitution. Opposing the Parliamentary Committee’s role, he said, the appointment of judges under Article 175A violates the mandate of constitution and against the independence of judiciary.

Justice Ejaz Afzal said checks and balances is given in the PC, as four of its members are appointed by the Leader of House and four by the Opposition Leader.

Justice Azmat Saeed Sheikh remarked perhaps appointment of judges under Article 175A minus of PC would not be ideal, but it does not mean that Parliamentary Committee be given a blank cheque, adding; “If the blank cheque is given to the PC then it would be a suicide.”

Hamid Khan also submitted his formulations regarding the case which are; the laws made to govern the republic will not be repugnant to Holy Quran and Sunnah; the state shall exercise its power through representatives of people; each organ of state will exercised its power within its jurisdiction, in order for proper working of government the separation of power is of paramount importance, in order to protect the fundamental rights there checks and balances system, therefore, the judiciary is conferred the power to protect the fundamental rights; in parliamentary forms the functions of institution overlap therefore it is necessary separation to ensure the independence; the judicial review in the prime function of judiciary; the fundamental rights enumerated in the constitution are sacrosanct and soul of constitution and their protection can only be guaranteed by judiciary if it is separated from other organs of state.

Earlier, regarding basic features of constitution, Justice Ejaz Afzal stated, “we (court) are not to re-define the basic features, because these are already written in the preamble of the Constitution.” He added Article 2A is also part of Constitution.

Justice Jawwad said for him India is irrelevant as many things, including protection of monitories, independence of judiciary and fundamental rights, are mentioned in the preamble of Constitution.

Justice Saqib Nisar said for the last two days he had been enjoying watching television as those people who don’t know about constitution are discussing it on TV channels, adding, “I am amazed by their debates.”

The chief justice asked Hamid Khan; “Suppose we uphold your views that the constituent assembly can change the basic features of Constitution then we have to see what are the basic features, as in India there are 27 basic features.” He further questioned if they assume there is a basic structure of Constitution then under what provision these could be amended?

Justice Jawwad’s views were that there was no need of revolution to change the Constitution. He said conclave of responsible politicians somehow deliberate the will of people and may decide that due to circumstances changes be made. “There are ways and not closed alley to bring the changes in Constitution,” he added.

Quoting the example of United Kingdom, the judge said elections were held there thrice on one agenda as the representatives of people wanted to reduce the power of House of Lords because anything decided by House of Commons was rejected by the House of Lords.

Justice Sarmad Jalal Osmany said: “We are the ultimate arbiter and have to protect fundamental rights, but are we the keeper of conscience?” he questioned and further asked; “Are we saying that the constitutional amendments are sacrosanct and others are not? and the constituent assembly is different from other parliaments?”

Hamid Khan replied that the parliaments are elected for five years and pass legislation for day to day affairs, however, the constituent assembly is constituted only for framing the basic features of constitution.

Justice Osmany said; “We are keeper of constitution and not the keeper of conscience, and questioned; “Can we say that the successive generation can change the constitution?”

Justice Asif Saeed Khan Khosa observed that the basic features should have relevancy to long users, as the American constitution is 200 years old and in India constitution is never derailed, therefore they can have long users.

He remarked that in Pakistan system vacillates as sometimes we want Islamic but other time social democracy. Similarly, sometimes we think that unicameral parliament is better but other time talk of bicameral legislature. We have experimented with so many things, he said. Do we have the basic structure or we like to have it?” the judge questioned.

Hamid Khan argued that the 1973 Constitution is 42 years old and stood 11 years dictatorship of General (retd) Zia-ul-Haq and eight years of General (retd) Pervez Musharraf. The dictators are afraid to change it altogether, he said, adding: “This document (constitution) is sin qua non for the future generations. Though it is rigid document but practically it is not.”

The lawyer contended that in Pakistan instead of political parties the political leaders are strong. If any party member differs with his leader then he has to face music. The hearing is adjourned till today.