Parliament with unlimited powers can secularise state: CJ

ISLAMABAD Attorney General Maulvi Anwarul Haq has apprised the Supreme Court that he had taken up the matter of appointment of judges of Balochistan High Court with the government and it would be resolved in due course of time. He submitted this before the apex court during the hearing of the 18th Amendment case on Monday. Responding to this, Chief Justice Iftikhar Muhammad Chaudhry while referring to the Balochistan High Court crisis said, Government should decide the judges appointment in Khyber Pakhtunkhwa, Punjab and Balochistan much before September. The process of judges appointment needs to be taken seriously, said Chief Justice adding the Supreme Court had been hearing 18th Amendment case for the last two months and did not know what would be the decision. Khursheed Ahmed Shodi, another counsel for the Federation, contended that a petition moved by J Salik was not maintainable on the grounds that minorities issue had been addressed in 17th Amendment and upon its basis two elections were held in the past but no one came to challenge it at that time. He said the apex court had reviewed the 17th Amendment but could not strike it down. He said the minorities parties also held demonstrations in favour of the 18th Amendment, which guaranteed more rights to them. During the hearing, the federation lawyer said that the parliaments powers were limitless. Responding to that, Chief Justice Iftikhar said limitless powers could secularise the country. Justice Javed Iqbal said the constitutional crisis must be avoided well in time. The AGP informed the court that the Prime Minister, the Law Minister and the Law Secretary had a meeting last week on the appointment of judges in Balochistan, Khyber Pakhtunkhwa and Punjab. On this, the court observed that the apex court suspended Hasba Bill before it turned into law but We want to give time to the government. We want to strengthen the parliamentary system in the country. The counsel for the Punjab government Shahid Hamid said the PML-N Quaid Nawaz Sharif had told him that the joint session of the parliament would be called on August 26. He said the federal and provincial law ministries of Balochistan should take interest in the judges appointment issue. During the proceeding, Shahid Hamid said the independence of judiciary and sovereignty of Parliament were also the basic features and neither of these features was superior nor inferior to each other as they both worked in tandem. He said that till date, it has been practice in Pakistan that the apex court had not reviewed the constitutional amendment passed by the Parliament. While quoting the British courts example, he said there the court instead of striking down constitution provision referred the amendment back to Parliament. Asif Khosa said in Hakim Khan case, the court referred the Articles 2A and 45 back to the Parliament, while the UK has introduced the system recently. The Chief Justice remarked that the apex court referred all the ordinances, including National Reconciliation Ordinance, issued by former President Pervez Musharraf to the Parliament and later declared them void ab initio when the Parliament did nothing about it. Shahid Hamid said his client (the Punjab government) wanted to make new system workable, acceptable and function. He said they were committed to independent judiciary and would implement the courts judgments. Justice Ramday inquired when the old system of judges appointment was working well then why there was the need to introduce Article 175-A. He said that the problem in judiciary started with illegal steps of some individual, otherwise, there was no wrong in the system. Shahid Hamid replied, I see it as failure of the system. He added that with Judicial Commission and Parliamentary Committee there would be more transparency in the appointment of judges in the superior courts. Iftikhar Ahmed Mian Advocate another counsel representing federation said that basic structure could be amended, while minorities in Pakistan had accepted the proportionate system for the selection of their representative in the Parliament. He said under 18th Amendment the minorities enjoyed two-fold rights: One minoritys candidates could contest election on general seat and secondly, could be elected through proportionate system. They both adopted the arguments of Wasim Sajjad and KK Agha on Article 175. Shahid Hamid will resume his arguments today (Tuesday). The counsel for Punjab government asserted before the Supreme Court that the new judicial system envisaged in Article 175-A through 18th Amendment was workable, acceptable and functional. Shahid Hamid contended before a 17-member bench headed by Chief Justice of Pakistan Iftikhar Muhammad Chaudhry and seized with hearing of pleas over 18th Amendment, that there was flaw in the old system which required change. The system was flawed and misused and required change, he added. To the benchs query he replied that there would be difference in the new system, as all the stakeholders would sit together to make appointments. He submitted documents with the bench and said that in a number of countries there were judicial councils and ten among them had councils comprising members of judiciary. He said among 17 Islamic countries in Indonesia, Nigeria and Sudan, the judicial recommendations went to parliaments. He said that the Pakistan Muslim League-Nawaz contested elections on two-major points ie, restoration of judiciary and constitutional amendments. Justice Jawwad S Khawaja told him that the Pakistan Peoples Party (PPP) was more emphatic in its stance than the PML-N. Shahid Hamid told the bench that Wasim Sajjad, counsel for the Federation, was not the lead counsel for the provincial government as their stance over judicial commission was different. To Justice Mian Saqib Nisars query about using Indian theory of basic structure for striking down any amendment, he replied that it was not possible. Justice Asif Saeed Khan Khosa observed that the Supreme Court had already mentioned the basic structure in lawyers case but the question before them was whether it could be used as a touchstone or not for striking down an amendment. The counsel said Up till now the august court in such matters had exercised restraint. He said if there was any conflict among constitutional provisions, these could be harmonized. Shahid Hamid would resume his arguments today (Tuesday).