Oath issue cannot curtail judiciary's power: CJ

ISLAMABAD Justice Saqib Nisar, a member of the 17-member bench hearing various petitions against the 18th Amendment, Wednesday raised a question that whether or not the court could examine any provision of 1973 Constitution under which the judges had taken oath. Justice Shakirullah Jan said that it was also the viewpoint of some legal minds that the judges could not check the Constitution under which they had taken oath. The 17-member larger bench headed by Chief Justice Iftikhar Muhammad Chaudhry Wednesday resumed hearing of identical petitions against the 18th Amendment. Referring to Zafar Ali Shah case, Advocate General Punjab Khawaja Haris said that no form of oath could restrict the judges from reviewing the constitutional provisions, adding that judiciary was there to control the reckless behaviour of the Parliament. Harris said that there was no difference between the oath taken under the subsequent dispensation or the original dispensation. Harris said that issue of fresh and old oath had been settled and now the judges were discharging function according to the law. Khawaja Harris said that independence of judiciary started from the process of appointment in the Constitution. Justice Asif Khosa said that appointment of judges did not affect the independence of judiciary. It is the court, which has to decide legal matters finally. While quoting an Indian judgement, Haris said the parliament did not have inherent powers to make amendment but this right was given to it by the constitution. The Advocate General Punjab argued that it had been stated in Zia-ur-Rehman case that the judges who had taken oath were bound to protect the Constitution. Justice Javel Iqbal said that protection did not mean to enhance the court power and lower the Parliaments power. The Chief Justice said whether the judges had taken oath under the Provisional Constitution Order (PCO) or under the 1973 Constitution, power of judiciary could not be curtailed. We have laid down the precedent for all times to come. We have our own code of conduct, he said. The amendment in Article 6 of the Constitution came later while this court passed the judgement in this regard earlier on July 31. We have mentioned that no one will take oath under any document except Constitution, he added. He further said that the court did not claim appreciation but had laid down the conduct for itself. Justice Khalil-ur-Rehman Ramday said, We should not copy things of other countries blindly but must keep in mind according to our own circumstances. Khawaja Harris on judicial activism said the courts had to be active and needed to take the 'bull by horns. Regarding Article 63-A, he said that the two-thirds majority in the Parliament took dictation from the party heads. Haris said if Parliament amended the Constitution and declared Pakistan a secular state then should the court remain silent and take no notice of this show of unlimited power by the Parliament. Khawaja Haris completed his arguments and the court asked Attorney General for Pakistan Maulvi Anwar-ul-Haq to appear before the court on Monday to address the court on the 18th Amendment. According to schedule, after AGPs arguments, Senator Raza Rabbani would address the bench to appraise it regarding parliamentary wisdom behind the 18th Amendment.