SC marks parliament’s perimeter

  • SC says Parliament cannot withdraw or abolish fundamental rights enshrined in Constitution through any amendment


Hearing the petitions filed against 18th and 21st constitutional amendments on Thursday, a 17-member Supreme Court (SC) bench, presided over by Chief Justice of Pakistan (CJP) Nasir ul Mulk, observed that Parliament could not withdraw or abolish the fundamental rights enshrined in the Constitution through any amendment.

Justice Ejaz Afzal remarked, “As far as the fundamental rights are concerned, Constitution only gives guarantee for them. How can these rights be withdrawn through a constitutional amendment?”

“The rights promised for minorities in Pakistan have not been even given to Muslims. Minorities cannot only field their candidates on general seats in polls but also their representatives have reached Parliament through reserved seats. The Constitution will have to be complied with. How can an overseas Pakistan holding dual nationality contest the election?” Justice Asif Saeed Khan Khosa observed.

Justice Jawwad S Khawaja remarked, “Representatives of minorities have not come through their own people but they have been nominated directly. These representatives don’t enjoy popular support. A person who is the most popular leader of minorities and enjoys support of his people is not an appointed minorities’ member. Does the one who owes to his party not owe to people?”

Making his case during the hearing, Advocate Iftikhar Gillani said, “All other matters, including those of minorities, are political and only people can decide about them. This decision be left to the people,” however adding that ordinary people could not be a part of the Parliament in the presence of the rich who had come to the House by spending billions of rupees.

Moreover, Gillani said that seven judges had given decision that anything which is in conflict with fundamental rights could be nullified. “Powers for making a constitutional amendment are not unconstitutional. It has been made clear with reference to emergency in Pakistan and India that no ultra constitutional step can be taken,” he contended.

Furthermore, counsel for Shamshad Ahmad Mangat, Hashmat Habib, requested the court to review Article 175-A of the Constitution. “There are reservations over the judicial commission (JC) and other matters. Does 18th Amendment fall in the ambit of amendment? The entire 18th Amendment is inappropriate. Is Article 175-A not opposed to independence of judiciary?” he questioned.

However, Justice Khosa pointed out that independence of Judiciary was included in the basic features of the Constitution.

Replying to the judge’s remarks, Habib said a mention has been made about the basic structure in the preface of 18th Amendment. “Everything was laid down in Objectives Resolution; that elected representatives will use democracy as power endowed by Almighty Allah,” he said, adding that the articles had been changed in the 18th Amendment which is “fraud with the people”.

The CJP told the counsel that he could not talk about repealing the entire 18th Amendment and should refer to the article being allegedly affected.

Continuing, Habib said the name of Khyber Pakhtunkhwa (KP) was given to a province despite the fact that the name of province could be changed only through referendum. “British rulers had named the province as NWFP and Parliament is not authorised to change the name of province,” he contended.

In this regard, Justice Sarmad Jalal Usmani questioned if this renaming had affected basic contours of the Constitution.

“Will you allow them to change the name of Pakistan if they change its name in future?” Habib tendered his counter argument in the shape of a question. Habib was told by the honourable judge that he was saying an “improper thing”.

The hearing of the case was adjourned till Monday.