Awesome
RETIRED MOD
- Joined
- Mar 24, 2006
- Messages
- 22,023
- Reaction score
- 5
SC asks: can assembly make massive amendments?
By Sohail Khan
ISLAMABAD: The Supreme Court on Tuesday allowed Adviser to PM and Chairman Implementation Committee on the 18th Amendment, Senator Mian Raza Rabbani, to appear before the court to present his views.
A 17-member larger bench of the apex court, headed by Chief Justice Iftikhar Muhammad Chaudhry, is hearing identical petitions challenging certain provisions of the 18th Amendment with particular reference to the formation of a Judicial Commission for the appointment of superior courts judges.
Other members of the bench are Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S Khawaja, Justice Anwar Zaheer Jamali, Justice Khilji Arif Hussain, Justice Rehmat Hussain Jafferi, Justice Tariq Parvez, Justice Mian Saqib Nisar, Justice Asif Saeed Khan Khosa, Justice Ghulam Rabbani and Justice Khalilur Rehman Ramday.
During the hearing, Chief Justice Iftikhar Muhammad Chaudhry said the case is not whether the judiciary should be independent, but the question is how the independence of the judiciary should be protected and there was difference in the point of view in this regard.
While giving his remarks, Justice Javed Iqbal said that this isnot a constituent assembly. He added that by keeping in view the doctrine of electoral mandate they have to observe whether this assembly can bring large-scale changes in constitution.
During the course of hearing, Senator Waseem Sajjad, counsel for the Federation, informed the court that Senator Raza Rabbani wants to appear before the court to present his views on the case. The court observed that Raza Rabbani would be welcome and would be called when be needed.
The chief justice said that Rabbani is allowed to appear before the court, and that the court would be pleased to hear him. Akram Sheikh, counsel for one of the petitioners Nadeem Ahmed, submitted that in the last three years several efforts were made to weaken the institution of judiciary.
He contended that the chief justice was suspended on March 09, 2007, while on November 03, 2007 the executive ambushed the judiciary and now once again efforts are under way to weaken the judiciary.
He submitted that when the government formulates the media or textile policy the concerned people were approached for their opinion but in the judges appointment case they did not discuss the matter with the judiciary. At this Justice Ramday remarked that judges were neither affectees nor stakeholders, but the custodian of the law.
Justice Jawad S Khawaja asked Akram Sheikh whether the draft of the 18th Constitutional Amendment was available in other regional languages to which he replied in the negative. Justice Tassaduq Hussain Jillani asked Akram whether the executive in the UK interfered in judicial matters or not. Was judiciary in Britain asked to give opinion before any change was effected in the modus operandi of the judges appointment? Or, was Parliament made part of the process?
Akram Sheikh replied that in Britain, the executive and the judiciary did not interfere in each others matters. The CJ asked Akram Sheikh as to what purpose did Article-7 of the Constitution serve when it did not include judiciary in the definition of the state.
Justice Asif Saeed said in his remarks that the Parliamentary Committee had not said this anywhere that the present judicial system has collapsed. During the hearing, Mehmood A Shaikh, Advocate on Record (AoR), submitted an unconditional apology in reply to the show-cause notice that the apex court had issued to him along with Dr Basit on Monday in the same case.
Dr Abdul Basit, however, told the bench that he could not submit his reply as a journalist had taken it from him but did not return. He said that he should be given two weeks to submit his reply and in the meantime allowed to appear before the court in the 18th Amendment case. The chief justice, however, directed him to submit the reply by June 3 and told Mehmood A Sheikh that the bench members would consider his request. Meanwhile, the court adjourned the hearing till today (Wednesday).
Agencies add: The Supreme Court questioned a petitioner whether his arguments were based on constitutional provisions and dealing with violation of basic human rights could turn the parliamentary reforms committee exercise for Judicial Commission by amending the Constitution as unconstitutional.
The bench raised certain queries while conducting proceedings on a plea of Nadeem Ahmed Advocate. When Muhammad Akram Sheikh read out a part of speech delivered by Khan Liaquat Ali Khan to the Constituent Assembly on March 7, 1949 ahead of adoption of Objectives Resolution, Justice Mian Saqib Nisar remarked that founding father of the 1973 Constitution did not have Objectives Resolution before him.
Why was not it considered at that time and why it was brought into the Constitution by a martial law administrator through insertion of Article 2-A! he questioned. He asked him how 1973 Constitution could be interpreted on the basis of Article 2-A.
Justice Asif Saeed Khan Khosa questioned: do people reserve the right for modalities while keeping the ideals intact? The Chief Justice asked him to explain which mandate was given to public in 1970 through Legal Framework Order.
Certain aspects were not touched by the Supreme Court at that time and left for the Constituent Assembly, he added. Regarding independence of judiciary, he remarked: It is nobodys case. Issue is how to secure independence of judiciary. Both sides are pressing for the independence of judiciary. Both have their own viewpoints.
To Sheikhs request for making the constitutional committees in-camera briefings public, the Chief Justice replied that so far the judiciary was concerned it was made public. Akram Sheikh citing mechanism for appointment of judges practised in various countries maintained that the mechanism of judicial commission would destabilise the system.
Justice Tassaduq Hussain Jillani told him that in the UK mode of appointment of judges had been changed. Were judges there consulted over the issue? he asked. Akram Sheikh contended that criteria for elevation of High Court judges were laid down in the Amendment but it could violate Article 209. He said the official functionaries sitting in the commission would acquire powers of sitting Chief Justice of Pakistan.
Ok this is new for me, apparently, to make large scale constitutional amendments you need to have a constituent assembly in place. There is some sort of pre-election declaration that constitutional amendments would be made by the incoming assembly...
Anyone got the specifics?