No constitutional provision struck down by court: CJ

ISLAMABAD Chief Justice Iftikhar Muhammad Chaudhry Monday observed that no constitutional provision had been struck down so far by the court. The court always tries to save the provision instead of spoiling it, he further remarked while heading the 17-member larger bench hearing various petitions against the 18th Amendment. The Chief Justice observed that Constitution recognised the trichotomy of power. Advocate General of Punjab Khawaja Haris, who is arguing against the 18th Amendment, said that the Constitution as well as Parliament recognised that ultimately court had the power to resolve the legal issues. The Chief Justice said that the presidential references were filed in the court twice in Hasba Bill case, because there was violation of fundamental rights in terms of freedom of thought and expression and the independence of judiciary, as a parallel judicial system was introduced through that bill. The Khyber Pakhtunkhwa Assembly passed the bill and sent to the Government for approval but the President filed reference against it, he added. The Chief Justice asked Advocate General Punjab to assist the court regarding Parliamentary Committees functioning and how it would play its role once the Judicial Commission would finalise the names on professional basis. Haris told the bench that Article 175-A should be struck down as a whole, as neither Judicial Commission nor the Parliamentary Committee was workable. Responding to the benchs query, he said that incumbent Parliament represented only 43 percent people as 57 percent did not cast their vote, so how it could claim that it represented the will of the people. On the question of Justice Khosa, Haris said the Assembly, which framed the 1973 Constitution represented 61.4 percent people. Justice Saqib Nisar asked what should be done for knowing the will of the people. When Justice Khosa asked Haris that he was challenging the legibility of the Parliament, he replied that the Parliament did not represent 100 percent will of the people. The will of people can be gauged through different means. However if the incumbent Parliament claims that it represents the will of people, this myth was not correct, he added. He further said that morally it was not recognised but legally the Parliament represented the will of the people and it had been discussed all over the world. Justice Asif Khosa said the best mode of knowing peoples will was through referendum according to Article 48 (6) of the Constitution, but what would happen if 30 percent people expressed their will in referendum? He questioned if 98 percent of the people changed the fundamental rights then what court should do. Justice Khawaja, however, came to rescue Khawaja Haris, saying that will of the people was a hot issue for the Federations counsels. Khawaja Haris said that there was an inbuilt mechanism in the Constitution to check the Parliament from making a law of its own choice. Justice Nasir-ul-Mulk asked if any court judgement was required to be revisited. Haris replied in positive and added that court had done this in Pakistan Lawyers Forum and Achakzai case. The Objective Resolution, preamble of the Constitution, and the Article 2-A provide the basic structure, he stated. It says that judiciary shall fully be secured. Justice Javed Iqbal said that in Hakim Khan and Kaniz Fatima case no extraordinary importance had been given to Article 2-A, while in Achakzai case it was said that it would be used for academic purpose. Sajjad Ali Shah has written in an order that the no answer could be given authoritatively. He asked if the Parliament could amend the basic features keeping in view that it was sovereign. Haris said that Amendment could be made by the Parliament but if it modified the basic structure then the court would have to see it. Justice Javed said that the Parliament passed the amendment in order to improve the system of appointment of judges. Haris replied that it was not the improvement but the Parliament encroached upon the independence of judiciary. It is not workable at all. It should be struck down as a whole, as neither Judicial Commission nor the Parliamentary Committee is workable, he added. Haris said that there were four basic features that were reflected in the Constitution. The basic document is the Objective Resolution. There are a number of judgments that say that Objective Resolution is the basic feature. The basic features cannot be violated or amended. There are a number of judgements that show that basic structure can not be changed, he argued. The Chief Justice said in Wukla Mahaz case, Sindh High Court Bar Association case and so many other cases the concept of basic structure had not been recognised, saying the judiciary was the main organ of the state and not the Government. Justice Jawwad S Khawaja said that the Federations counsel Barrister Bacha stated that the members of Parliamentary Committee would take suggestion from the Prime Minister and it was quite alarming. Justice Khalil-ur-Rehman Ramday asked that though the candidates name for the elevation to superior courts would be initiated by the Judicial Commission, how it would be finalised. Haris replied that Judicial Counsel would formulate the rules, as the constitution was silent about it. Justice Tasadduque Hussain Jillani said that whether the old provision would be revived automatically if Article 175-A was struck down. Haris replied, Yes, because we have Article 175. The Advocate General Punjab said that court was the guardian of fundamental rights of the citizens. The amendment in Constitution was brought through an act of the Parliament. But it does not have unbridled power to abrogate the fundamental rights. The Article 175-A is in breach of the independence of judiciary.