The 18th Constitutional Amendment Bill has created rift among lawyers as Barrister Aitzaz Ahsan, former president of Supreme Court Bar Association (SCBA), sees a clash between judiciary and parliament if the court strikes down the legislation, while others are hell-bent that the Supreme Court, being guardian of basic structure of the constitution, reserves the right to review the law.
Addressing media at the Supreme Court on Tuesday, Aitzaz said the parliament is competent enough to change the basic structure of the Constitution whereas the court does not have similar powers. "The 18th Amendment has not been approved by a two-third majority rather by unanimity of all political parties. Though some parties gave dissenting notes on some issues, they all voted for the legislation. And 17 judges (SC) cannot upset the mandate of 170 million people and if it happens, the parliament must not sit as silent spectator, it would retaliate by nullifying any such decision," Aitzaz said.
Referring to the Lawyers Forum case of 2005 that challenged the Legal Framework Order, he said Chief Justice Iftikhar Muhammad Chaudhry was member of the bench, which held parliament capable of changing basic structure of the Constitution whereas the SC had no powers to overrule the amendment. Aitzaz said he does not feel shy saying he had more respect for Chief Justice Iftikhar Muhammad Chaudhry than President Asif Ali Zardari and Prime Minister Yousuf Raza Gilani because the CJP had changed the course of the country's history.
Aitzaz Ahsan had earlier said a challenge to the 18th Amendment, approved unanimously by parliament, might lead to a clash between state institutions. In response to the statement, Advocate Akram Sheikh had said that Aitzaz had committed contempt of court.
When asked about whether he had committed contempt or not, Aitzaz said if someone feels like that he should move an application in the court and I will present my point of view. Giving reference to the statement of Akram Sheikh, he said, "I feel disappointed that people who used to appear before former Justice Abdul Hameed Dogar when CJP Chaudhry was sacked are saying such things. They had been saying 'my lord' to Justice Dogar which I never did."
He said general elections by which this parliament came into being; reinstatement of sacked judges and escape of Pervez Musharraf from the country was result of lawyers' movement. We should feel proud of having earned these institutions after struggle, now they (institutions) should work in harmony, he added.
When asked whether an amendment approved by the parliament with unanimity could do away with apex court's power of judicial review, Barrister Aitzaz gave reference to Article 238 and 239 of the Constitution saying that an amendment cannot be challenged before any court. Article 239(5) of the constitution reads: "No amendment of the Constitution shall be called in question in any court on any ground whatsoever."
Zafar Ali Shah case is the only case, which set limits for the constitutional amendments; these restrictions were not meant for the Parliament but for a single person ie Pervez Musharraf. He said the SC has the authority to entertain any petition on the subject and all it can do is suggest the parliament to change certain provision, he added.
When asked about reason for lawyers' leaders including Ali Ahmed Kurd, Ather Minullah, former Justice Tariq Mehmood and his own tilt towards the government on the issue of amendment, he said we all are doing the same thing which is raising voice for the supremacy of the Constitution.
To a question regarding proposed plan in 18th Amendment for appointment of superior courts judges, he said in my personal view there is nothing wrong in composition of judicial commission. He referred to the practice of judges' appointment in UK and USA where it was done by the Prime Minister and President respectively, adding it does not hurt the independence of judiciary.
The Chief Justice of Pakistan has supremacy in judicial commission as the process of judges' appointment has to be initiated by him being head of the judicial commission. If six out of eight members of the commission reject someone to be appointed as a judge, then there must be a cogent reason for that, he added.
When asked whether he would represent the federation if the SC takes up any petition against the amendment, he said if the case is taken up by a bench headed by the CJP, he would not appear as counsel but would have sympathies with the parliament.
Ahsan expressed dismay over the deletion of Article 17 (4) that makes it mandatory for the political parties to hold party elections. However, he appreciated other changes particularly balance of powers between the Prime Minister and the President and provincial autonomy.
Soon after the media talk of Barrister Aitzaz Ahsan, Advocate Akram Sheikh came to rectify his image saying he had been appearing before former Justice Abdul Hameed Dogar following a resolution passed by Pakistan Bar Council (PBC). He warned Barrister Aitzaz Ahsan against raising allegation saying he (Aitzaz) himself had been appearing before military courts, which Akram Sheikh said were merely fraud.
Giving reference of Al-Jihad Trust case Sheikh said Aitzaz Ahsan had represented the federation against the independence of judiciary. All he (Aitzaz) had for judiciary is one thing and that is representation of CJP Chaudhry before the court when he was sacked. Akram Sheikh emphatically said the court can strike down the amendment as was done in the case of 13th and 14th amendments.
Advocate A K Dogar said that it is the Constitution which is supreme not the Parliament. Power of judicial review is part of basic structure which the parliament cannot change, he added. Advocate Abdul Hafeez Pirzada termed the amendment as misnomer saying the parliament can merely make some improvement but cannot change the basic structure of the Constitution.
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