ISLAMABAD - As 1973 Constitution debars any court to question the amendment made by the parliament in it, therefore, the Supreme Court is finding way how a constitutional amendment could be struck down.
Justice Asif Saeed Khan Khosa said: “According to the constitutional provision (Article 239) the court (SC) has no jurisdiction to look into the validity of the constitutional amendment as the constitution has shut down the door for us (apex court) and also there is no judgment which has opened the door for us, therefore, we are trying to find out way with the assistance of you (lawyers).”
Article 239(5) of Constitution says: “No amendment of the Constitution shall be called in question in any court on any ground whatsoever.”
The court inquired from Hamid Khan, appearing on behalf of various bars including Sindh High Court Bar Association, under which law they have power to review the constitutional amendment . The counsel replied that the statutes are not only the law, but the Supreme Court judgments are also law and even there is doctrinal law. “Customs, usages, followed over the period of time, also become law.” The constitutional amendment could be struck down through law of judgments, he contended.
The Full Court of Supreme Court, headed by Chief Justice Nasir-ul-Mulk, was hearing petitions against 18th amendment , particularly judges’ appointment under Article 175A of Constitution. The petitioners have prayed the Court to strike down the constitutional amendment .
Hamid Khan contended that United States of America Supreme Court in Marbury vs Madison case had asserted itself, adding though American sc did written powers, besides that Justice Marshall said ‘yes we can do’ and delivered a historical judgment regarding the independence of judiciary.
Agreeing with Hamid’s argument, Justice Khosa remarked that the USA sc powers were not mentioned in their constitution, “but in our constitution the sc has been given powers,” adding; “We (judges) have taken oath of constitution.”
Justice Ejaz Afzal inquired, what was the reason for creating the supreme document (Constitution) and what was the need of enacting it? “Should the amendments or changes in the constitution be made on the caprice and will of the parliament?” he asked. “Whether the supreme document (Constitution) has value for a decade or it is for all time?”
The court observed that our parliament is different from UK parliament, which can do anything; and according to Dicey, a jurist, even it could declare a woman a man. Justice Saqib Nisar said there was a need to set some principles, as Pakistani constitution is different from that of Britain. Justice Jawwad S Khawaja questioned whether Pakistani parliament is above the Constitution and all powerful? He said the line had to be drawn.
Justice Khosa said the people of Pakistan have given the constitution for the people of this country. Giving an example the judge said presume four brothers of a family are living in a house and with the passage of time the family members increase but the four brothers have decided how to live in palatial house. He questioned it is the judges that will tell them how to live?
Hamid Khan asked whether the court would be observer in the case the parliament legislate on federalism or autonomy.
The hearing is adjourned till today.