ISLAMABAD: The Supreme Court has been asked to declare the proposed Constitutional Amendments bill, unconstitutional and void, and restrain the federal government or any lawmaker from introducing it in either of the Houses of the parliament.
The Balochistan Bar Council, on Wednesday, filed a petition under Article 184(3) of the constitution and cited chief secretaries of all the four provinces, National Assembly speaker, Senate chairman, and principal secretaries to the prime minister and president as respondents.
It challenged the vires of the proposed Constitutional Amendments Bill Package to the 1973 Constitution, saying that the proposed bill is in complete violation of all the constitutional principles and is an attempt to destroy the independent judiciary and fundamental rights as guaranteed under the Constitution.
The proposed Constitutional Amendments Bill destroys the principles of independence of judiciary, access to justice and fundamental rights guaranteed to citizens of Pakistan.
The petitioners said that it is settled law under the constitutional jurisprudence of Pakistan that independence of judiciary constitutes a basic and salient feature of the Constitution. Therefore, even the Parliament cannot amend the Constitution so as to undo salient features of the Constitution and render a pillar or organ of the state redundant. Further, no bill for amendment of the Constitution can be introduced in either of the Houses of the Parliament until both the Houses are complete with all the members available.
The creation of a Federal Constitutional Court under Section 14 of the proposed amendment violates the fundamental principles of the Constitution by making the Supreme Court of Pakistan, the apex court, subordinate to this new court. It also undermines the authority of the chief justice of Pakistan by making them answerable to the chief justice of the Federal Constitutional Court.
The submitted that the proposed bill would change the basic salient features of the Constitution guaranteeing the fundamental rights, separation of the powers, independence of judiciary and right to access to justice.
The proposed bill in effect will abrogate the Constitution of Pakistan as it aims to bring the superior judiciary under the control of the executive Parliament and the establishment.
The parliament does not have the power to make any amendments which abrogates the Constitution of Pakistan or in effect destroys the judicial power of the superior courts.
The Parliament in terms of Article 239 is not vested with the powers to amend the Constitution so as to substantively alter, repeal or abrogate its salient features. The proposed amendments by the parliament will change the democratic form of the Constitution into an undemocratic one.
The proposed amendments will abolish the independent courts and judiciary. The power to amend is neither unlimited nor unbridled. These actions and the proposed bill are open to Judicial Review even prior to its introduction in the Parliament and even after it is introduced therein. Hence there are implied limitations, restrictions on the parliament to amend the Constitution so as to substantively alter, repeal and abrogate its salient features.
It appears that the government is bent upon getting the proposed Constitutional Bill passed by the Parliament under dictation of the establishment. The proposed bill is in complete violation of the Objective Resolution.
It submitted that the fundamental rights, independence of the judiciary and right to access are basic features of the Constitution of Pakistan which cannot be repeal, alter and abrogated through any amendment under Article 239 of the Constitution and as held in numerous judgments of this Honourable Court.
Any attempt by the executive or the establishment to abrogate, repeal and alter the salient features shall be unconstitutional, therefore, void.
Copyright Business Recorder, 2024