PTI believes it could fly if it had wings

• PTI leaders pin hopes on SC to strike down 18th and 21st constitutional amendments, order parliament’s dissolution to pave way for Imran Khan’s term in power
• As Hafeez Pirzada challenges parliament’s power to ‘meddle with Constitution’s basic structure’, top PTI legal minds believe parliament’s dissolution not on cards

As the Supreme Court is set to take up various petitions challenging 18th and 21st constitutional amendments on February 24, Hafeez Pirzada, one of the architects of 1973 Constitution and a petitioner in case, has convinced some Imran Khan-led Pakistan Tehreek-e-Insaf (PTI) leaders that the court may not only strike down the 18th and 21st amendments, it might order dissolution of the Parliament for passing laws in violation of the basic framework of the Constitution which is given protection by the Constitution itself, Pakistan Today has learnt reliably.

“If it happens, a new constituent assembly would be elected to remove all controversial amendments from the Constitution and if a fresh election is held, PTI may get into power through a landslide victory,” a source quoted a PTI leader as telling.

Taking the context into account, it may be mentioned that the Supreme Court recently decided to simultaneously hear the petitions against formation of military courts, 21st Constitutional Amendment and a four-year-old pending case against 18th Constitutional Amendment.

The petition against the 18th Amendment had been filed by Abdul Hafeez Pirzada in year 2010. The apex court also issued notices to the all the petitioners and respondents for case hearing on 24th.

During the hearing of Lahore High Court Bar Association (LHCBA)’s petition against the establishment of military courts, the three-member bench headed by Chief Justice of Pakistan (CJP) Nasirul Mulk observed that similar questions have been raised in both cases. Constitution’s basic structure and Parliament’s right to amend it would be reviewed.

During the hearing of petitions against the 21st Amendment, the CJP remarked that a case against the 18th Constitutional Amendment is pending for four years and similar questions were raised in the petition too.

The CJP said that the issues pertaining to amendments in Judicial Commission of Pakistan (JCP) rules for the appointment of judges have also been raised in the same matter. He said the court was conducting initial hearing and as the case matures, it will be referred to 17-judge full court as the 18th Amendment case was also heard by full court.

PIRZADA ARGUES:

Pirzada, in his petition, says that the 18th Constitutional Amendment is the violation of articles 17, 19 or 25 of the 1973 Constitution, which relate to fundamental rights. It cannot be passed by the Parliament in derogation of the clear restrictions imposed by Article 8 (2) on the power of the state to pass any law.

Therefore, the restrictions imposed by Article 8 (2) clearly apply to the Parliament regarding laws which are in conflict with fundamental rights and any such law enacted by the Parliament, to the extent of such contravention, would be void.

In the petition, Pirzada stated that articles 238 and 239, which confer on the Parliament the power to amend the Constitution, cannot be read as expressing the “death wish of the Constitution” or its “legal suicide”. In exercising its amending power, the Parliament cannot arrogate to itself the role of the official liquidator of the Constitution, the petitioner said.

The limited amendatory power of the Parliament which was conferred to preserve and protect the basic features of the Constitution is by itself a fundamental feature of the Constitution, the petitioner said, adding that in Pakistan, the Parliament’s power is limited by the barrier of non-amenability of the basic features or framework of the Constitution.

Some provisions of the 18th Amendment are beyond the constitutional powers of the legislature and the amendments made in the Constitution violate the basic structure/framework of the constitution, he contends.

The petitioner raised questions over the articles 177 and 193 and sections 66 to 70 which he stated were an attempt to drastically change the procedure of appointment of judges to the superior judiciary and thereby rewrite the Constitution, empowering the Executive and Parliament to dictate terms.

Article 63-A purports to impinge on the freedom of expression of any lawmaker in the garb of party discipline and the amendment indicates that it can be used as an instrument of arbitrary suppression of freedom of expression of views by the members of the parliamentary parties even on important national issues.

The petitioner prayed to the court to strike down Article 175-A inserted in the Constitution through sections 66 to 70; the amended Article 63-A through Section 22; the transfer of subjects from the erstwhile Concurrent List to the federal legislative list through inter alia section 101 of the Constitution (18th Amendment) Act 2010.

PTI LEGAL MINDS SHRUG OFF THE NOTION:

However, top PTI legal minds, Justice (r) Wajihuddin Ahmed and Hamid Khan Advocate, have shrugged off the notion, saying that the apex court may strike down 21st Constitutional Amendment or the 18th Amendment but there was no possibility of dissolving the National Assembly for approving an amendment in violation of the fundamental framework of the Constitution or formation of a new constituent assembly to restore the Constitution in its original form.

Justice Ahmed said that the even if the entire Constitution is suspended, the Supreme Court in its verdict in a case in 1972 stated that Objective Resolution provided the fundamental structure of the State of Pakistan.

He said that the apex court in Syed Zafar Ali Shah case had declared that the fundamental framework of the constitution is fundamental rights which cannot be amended.

“In Mehram Ali case also, the court had strike down parallel system of judiciary introduced by Nawaz Sharif government without dissolving the parliament. After 18th Amendment, when the PPP government had brought in some controversial amendments empowering the Parliament and Executive to appoint judges of superior courts, the chief justice had held negotiations with former prime minister Gilani and later the government brought in 19th Amendment to remove the controversial clauses without striking down the 18th Amendment. Same may happen again in terms of the 21st Amendment.”

Hamid Khan Advocate said that the notion of dissolving the Parliament for controversial amendments was farfetched. He said that since 18th Amendment was passed by the previous parliament, so the incumbent parliament could not be held responsible. He said the PTI had nothing to do with Hafeez Pirzada’s petition which was solely personal idea of Pirzada who had filed the petition in year 2010.