ISLAMABAD - The Supreme Court has been asked not to assume the burden which the Constitution has not conferred upon it, as “the judiciary has nothing to with the constitutional amendments”.

Khalid Anwar, the govt’s counsel, argued before the Full Court, headed by Chief Justice Nasirul Mulk, that the judiciary does not have the treatment of all ailments, saying in the last three decades, the Supreme Court had not struck down constitutional amendment/s.

The counsel while arguing the case briefed the court about history of Indian Supreme Court judgments in Kessavananda Bharti, Munawara Mills and Indira Gandhi cases and discussed the basic structure.

Justice Khosa said the parliamentarians understand the pulse of the people, who have elected them. "They know what the people desire; therefore they would not commit suicide by deciding about something which is against the wishes of their electors. They (politicians) are generally aware of the country's history."

Justice Azmat Saeed Sheikh inquired, what had happened in the 17th Amendment, should it be the principle now "that we will lose the job if not validate (dictator actions).”

Justice Khosa remarked that the people through their representatives have given the constitution and decided which organ of state does what. The judiciary has nothing to do with the constitutional amendments. If the parliamentarians amend the constitution against the desire of people, then the people should decided how to deal with them.

Khalid Anwar contended that basic structure (Objective Resolution) has been discussed in Ziaur Rehman case. Justice Khosa said: "If we allow one feature of the constitution to trunk its other provisions, then nothing would be left except Article 2 A, and it may lead to destruction."

Justice Ejaz Afzal said that preamble of the constitution has not been read in the said judgment to its entirety. The preamble mentions, Muslims shall be enabled to order their lives in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah, there will be democracy, freedom, social justice system of Islam in the country. The Part I, II and other Parts of the Constitution are in complete conformity to the Objective Resolution.

Khalid Anwar argued that any two scholars differ on the interpretation of Holy Quran and Sunnah. He said in the last decade not the non-Muslims but the Muslims have killed Muslims on the basis of their dogmas.

Justice Qazi Faez Isa observed that the word 'sect' had been introduced in the constitution later, as it was not in the original document. He inquired whether the Court interpret the constitutional provisions in accordance with the original constitution or the one in which 'sect' was added. He said the sectarianism is a curse, as the Holy Quran does not mention it. "If we follow the sectarianism then we will die of its own hand. This is what we are seeing in the Muslim world."

Khalid Anwar agreeing with him said that each sect has its own theology and dogma. He said military dictator introduced the 'explanation' in Article 227 in 1980.

After the break, Khalid Anwar referring Mehmood Khan Achakzai case said that the characteristic or salient features of constitution are amply reflected in the Objective Resolution, which had been made part of the Constitution through Article 2A.

Justice Saqib Nisar questioned whether the Article 2A of the Constitution could be deleted.

The counsel replied; "Yes, this can be done as it was introduced by the military dictator."

The judgment, passed by PCO judges, was worst and shameful, as it gave power to the General to amend the constitution besides the fact that Musharraf's counsel Sharifud Din Pirzada had not even prayed for that.

Khalid Anwar said former chief justice (retd) Saeeduz Zaman Siddiqui had told him "that on the night of January 2000 from 12:00 to 3:00 the army officers, including General Mehmood, pressurised him to take oath on PCO, but he and other five judges were adamant and refused to do so."

They had shown high standard of decency to lay down robe instead of taking PCO oath, but no bar council or association held reference in their honour.

The counsel asked the bench to rub out the Zafar Ali Shah judgment, as it is a stigma on the Court. Justice Khosa, however, said whatever had been stated in that judgment is neutralised in Sindh High Court Bar Association judgment.

Khalid Anwar argued that the Supreme Court should not have validated the military dictator's action. "That had opened the portal for future military intervention.

Justice Jawwad asked the counsel, “According to you there is one single feature of Constitution, which is unalterable and that is democracy as it has corrective mechanism.” The judge questioned if this feature (democracy) is taken away through constitutional amendment and the parliament decides from now onward there will be no more democracy, but there will be 'Khalifat' in the country.

The court questioned whether the remedy lies in streets, whether the answer is bloodshed as had happened in the past.

The counsel asked the court it was not the responsibility of the judiciary to decide the matter, adding; "Let the people decide."

Earlier, Khalid Anwar argued that the fundamental rights can be amended but the court has to decide what the essence of the constitution is.

Justice Ejaz remarked that the constitution does not confer upon the fundamental rights, but simply guarantees them. He questioned whether the parliamentarians could rob the people of their rights.

The hearing is adjourned till today.