ISLAMABAD: The Supreme Court (SC) on Monday remarked that parliament itself was not clear about the basic structure of the Constitution and asked if an amendment to the Constitution could be made without taking the people into confidence.
A 17-member SC full bench, presided over by Chief Justice Nasirul Mulk, took up for hearing the petitions filed against the 18th and 21st constitutional amendments on Monday. During the hearing, Justice Ejaz Afzal Khan remarked what would be left in the Constitution if fundamental rights, the independence of the judiciary and judicial review were abolished.
Justice Asif Saeed Khan Khosa said that it had not been determined so far what the limits of parliament to amend the Constitution were and to what extent the SC could nullify them. It was laid down in the manifesto of the political parties that the methodology for appointment of judges would be changed and the people had given permission in respect of the amendments made on this count.
Justice Sarmad Jalal Usmani said that parliament was more powerful than judges. Any decision could be made with the support of a majority in parliament or fundamental rights could be suspended through an amendment.
Justice Dost Muhammad Khan said the Article 6 of the Constitution was the basic constitutional structure and asked if any amendment which ran contrary to fundamental rights could be made.
Iftikhar Gillani, while wrapping up his arguments, said whether it was the 18th Amendment or the 21st Amendment, it was a political matter and the SC had no jurisdiction to hear it. This matter should be left to the people and parliament.
Justice Dost Muhammad Khan said that the Article 6 of the Constitution was the basic structure and a change was brought in Article 6 to save the Constitution from suspension or abrogation. He asked if fundamental rights could be called the structure and if the right of parliament for making an amendment in Article 239 was limited and if anyone could be allowed to establish a private army through a constitutional amendment.
Iftikhar Gillani said that parliament was a representative of the people and it was stronger and more powerful than monarchy.Justice Sarmad Jalal Usmani remarked, “Can a majority party introduce an amendment in the basic constitutional rights while staying in the government?”
Gillani said it should not be done and basic fundamental rights not be touched upon.Justice Usmani observed, “It has been said in the decisions that parliament is more powerful than judges as parliament enacts laws with a majority. What will be done if the Constitution is changed? If parliament undoes Article 2, will we too say that this article is not needed?”
Gillani said the method for distribution of powers among the institutions was enshrined in the Constitution. In certain countries the basic structure had been recognised partly. Justice Asif remarked, “Different countries have accepted the basic structure in their own way. Situation is different in Pakistan. It has been laid down in articles 239 (5) and 6 that the SC cannot hear the petition.”
Gillani said fundamental rights spelt out in the Constitution were equal.Justice Sarmad remarked, “Fundamental rights all over the world are equal. Question is this that parliament can suspend the fundamental rights. Are the fundamental rights a part of the structure?
Justice Usmani remarked, “Whichever is majority party in parliament, it makes the government. Does it mean that it can suspend the fundamental rights?” Gillani said that the basic structure had been recognised in the Constitution of 33 countries.
Justice Sheikh Azmat remarked it had been said in court’s precedents that basic structure was a political question.Gillani said if Article 239 was not followed, the SC could nullify the amendment.
Justice Khosa remarked, “It has not been determined so far if parliament can make an amendment to what extant and court can declare it void to what extent.”Gillani said the court was entitled to interfere wherever party discipline was breached. Constitutional provisions were there for guidance of parliament. The Constitution would itself deal with whosoever committed a breach of any kind in the Constitution. Court should not leave its mandate nor should it touch upon powers of others.
Justice Mian Saqib Nisar remarked, “Despite restriction, can we declare these amendments null and void or otherwise it should be done under powers of judicial review?”Gillani said, “I will say, we will have to respect global wisdom and accept the powers for making an amendment to the Constitution.”
Justice Asif said that there was another angle that a bill became law and if it became part of Constitution, they were protecting the Constitution. He asked if they could nullify a law which had become a part of the Constitution. Gillani said, “It has been laid down in the Wali Khan case verdict that it is not the mandate of courts to annul the amendments.”