8 April 2005	Friday	28 Safar 1426

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ISLAMABAD, April 7: Attorney-General Makhdoom Ali Khan on Thursday told the Supreme Court that reopening matters relating to independence of judiciary, already settled exhaustively by the apex court, would seriously undermine the very concept. “Let’s not try to be wiser than the constitution makers as reopening of issues already decided in the 1996 Al-Jihad and Malik Asad Ali cases would seriously undermine the independence of judiciary,” Makhdoom Ali Khan said in response to arguments presented in support of petitions challenging the 17th constitutional amendment and the dual offices of President Pervez Musharraf.

A five-member Supreme Court bench, constituted to hear a total of seven constitutional petitions together, comprises Chief Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Chaudhry, Justice Javed Iqbal, Justice Abdul Hameed Dogar and Justice Faqir Mohammad Khokhar.

While interpreting the constitution, the SC must adhere to its text and should be guided by words of the basic law, the attorney-general said. What anyone, no matter how high he might be, had said in a public speech or in a political agreement was completely irrelevant to the task before the court, he added.

If the court breaks away from the moorings of the constitution and ventures out in the troubled waters of abstract ideals, it might founder on the rocks of politics, he contended.

Referring to the petition of Engineer Jamil Ahmed Malik of Pakistan Communist Party, who has challenged the assent of the dual office bill by the acting president, the AG said that accepting the petitioner’s arguments would lead to a complete paralysis in government every time the president proceeded overseas.

Parliament would be unable to legislate if there is an emergency during the absence of the president, he said, adding that all executive orders were carried out in the name of the president.

About the challenge against the ‘President to Hold Another Office Act 2004,’ the AG quoted items 41 and 42 in the Federal Legislative List which, he said, specifically provided for legislation in connection with the election of the president.

Article 63 (1-d) of the constitution, he said, empowered parliament to declare that holding certain offices of profit would not disqualify their holder, thus giving clear indication in the constitution itself that no exception could be taken to the federal government’s competence to legislate in this behalf.

Parliament is fully competent to add to the list of qualification or disqualification of members, he said.

Referring to Wahabul Khairi’s petition regarding age-limit for judges’ retirement, he said the SC had consistently held over the past three decades that it was a creature of the constitution and that it did not have the power to strike down any provisions of the constitution, except on the grounds that an amendment had not been made in accordance with the procedures provided in the constitution itself.

If this court went beyond its traditional role of constitutional interpretation, it would be entering the domain of politics, the AG said, adding that such political questions could not be adjudicated by the judiciary.

These were matters, he said, in which appeal lay with the political sovereign and the people were to act as per the constitution through their chosen representatives.

While presenting his arguments, Eng. Jamil deplored that the judiciary always took a lenient view on matters relating to military.

“This impression is wrong as we have taken decisions against members of the armed forces,” Justice Javed Iqbal observed.

“But I have seen a television programme in which former chief justice Nasim Hasan Shah admitted that the judiciary faced difficulties in doing complete justice during military governments,” replied Eng. Jamil.

“This could be his personal opinion, not binding on us,” observed the chief justice, adding that angels were not present everywhere.

Barrister Zafarullah Khan of the Watan Party, who has challenged the holding of two offices by the president, also concluded his arguments on Thursday.