- Justice Khosa says judiciary having absolutely no jurisdiction over parliament’s decisions is dangerous
Hearing petitions filed against 18th and 21st constitutional amendments on Wednesday, a 17-member Supreme Court bench, presided over by Chief Justice of Pakistan (CJP) Nasirul Mulk, observed that the judiciary having no jurisdiction over the parliament’s decisions could be “dangerous”.
During the hearing, Justice Asif Saeed Khan Khosa referred to judiciary’s exercise of power in the name of national security as a doctrine of necessity. He said that the SC was entitled to defend the Constitution only when it was attacked. The extent by which the judiciary could go for safeguarding the Constitution was however not clear, he added.
“If responsibility for protection of the State rests with us, then are we not responsible for protecting the powers of parliament? India has recently made an amendment for formation of judicial commission in connection with appointment of judges on our pattern, which has been challenged. Constitution has been made by the people and now we tell them that they did not show maturity while making it?”
Justice Mian Saqib Nisar jumped in with inquisitive insights, “Constitution has struck a balance in the powers. We are answerable to someone despite having full powers. If Constitution faces a threat or the State is under threat, can the court endorse or nullify the constitutional amendments by using this threat as a weapon? We cannot declare constitutional amendment null and void. In other words, is doctrine of necessity applicable in this state?”
Arguing on the occasion, Hafiz Pirzada said that SC was the custodian of the Constitution and it could exercise its powers in consonance with the Constitution. He cited the example of elections in the country, which he claimed were never held transparently and the Judiciary had to intervene.
Upon questioned if the elections’ case could be classify as doctrine of necessity, Pirzada replied in negative, however clarifying that it was the use of constitutional powers. “If the State faces threats, judiciary can interfere.
“Tell us if we have only this power or we have some other powers too,” the CJP questioned, invoking a deeper debate on Judiciary’s powers.
Pirzada remarked that the SC could not remove the government directly while the referendums held in the country were “suspicious”. The judiciary has advisory powers over the matter, he said, replying to a question on SC’s power on referendums.
“Article 186 is there with you. If you don’t try to save the country then it is your constitutional failure. You had given a wakeup call on Karachi situation. This is your judicial power,” Pirzada added.
Moreover, Pirzada pointed out that the Judiciary had to protect the minorities per Islamic teachings. “You cannot go back from your powers. You have to decide where you have to interfere or not interfere,” he said.
Justice Asif remarked, “Does any provision exist under which action could be taken against unconstitutional steps, except Article 199? Can we declare any matter unconstitutional? Can we defend the Constitution? How can we defend the constitution? Of course, if someone attacks then we will defend it.”
“If the things are so, we will have to protect every important pillar of this country. It becomes our responsibility that we protect the powers of the Parliament for making amendment,” he added.
During the hearing, Hamid Khan argued that both 18th and 21st amendments had affected the basic structure of the Constitution.
“Two amendments have been made. The amendment has been made in the Army Act and it has also been ensured that no court can proceed against them. National Action Plan was evolved after attack on Army Public School in Peshawar. Point No 2 of this plan is relevant which relates to establishment of military courts,” he said, adding, “Setting up military courts is not a new thing in the country. However, the SC has already declared them illegal and unconstitutional. This article is alien to articles 2-A, 8, 25, 19, 175, 10-A and others.”
“Article 2-A which provides guarantee for independence of Judiciary, has been affected directly. Clause 1 and 11 of Article 8 have been rendered ineffective fully. Attempt has been made to restrict the powers of superior judiciary,” he contended.
Later on the court ruled that the case would be heard till 11am on Thursday (today) while the full court will resumed hearing on June 16.