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| 12 April 2005 | Tuesday | 02 Rabi-ul-Awwal 1426 |
‘System neither presidential nor parliamentary’
ISLAMABAD, April 11: Advocate-General Makhdoom Ali Khan on Monday told
the Supreme Court that Pakistan’s system of governance was neither parliamentary nor presidential, but based on a balance of power between the two. As far as the resumption of democratic norms and parliamentary form of government was concerned, it was a settled law that Pakistan’s system of governance was neither parliamentary nor presidential, the attorney-general said before a five-member bench hearing petitions challenging the 17th Amendment to
the constitution and the dual office of President Pervez Musharraf.
The system was, in fact, a balance of power between the two but this balance was not a new development and had been the law since 1985, he contended.
So there is no harm in saying that we have evolved a new system and do not have a parliamentary system of governance in the country as the president is no more a ceremonial head, especially after entrusting him with certain powers under the constitution, Justice Javed Iqbal observed.
He also referred to the Mehmood Khan Achakzai case in which it was held that unbridled powers could not be granted to parliament to amend the basic structure of the constitution.
In case parliament went wrong, the AG replied, the remedy lay only with the people and not with the court.
In the Al Jihad case, the court had accepted the doctrine of harmonious construction between different provisions of the constitution, instead of striking down those provisions straightaway, he said. To amend or re-write the constitution was not the job of the court, he emphasized.
Justice Javed Iqbal referred to another judgment in which it was held that the Objectives Resolution could not be ignored as it gave new horizons of understanding to look into the constitution and asked if there was anybody on earth to check parliament if it enacted a law contrary to the resolution.
Nobody except the people of Pakistan, the AG replied and cited a number of judgments — the Sharaf Faridi, Mujeeb Pirzada, Al Jihad Trust, Zafar Ali Shah, Watan Party and Qazi Hussain Ahmed cases — to establish that parliament was also a constitutional body and a co-equal organ of the government.
The power of judicial review should be exercised with extreme caution so that it did not intrude into the domain of other branches of the government, the AG stated.
He said Gen Musharraf enjoyed less power than former president Ziaul Haq. President Musharraf could not nominate the prime minister, he said. Similarly, the former president enjoyed discretionary powers to appoint the chairman of the joint chiefs of staff committee and the services chiefs, but the 17th Amendment had amended Article 243 of the constitution to reduce the discretionary power of President Musharraf, he said.
Justice Faqir Khokhar asked whether the United States Supreme Court had ever struck down any provision of its constitution.
The AG said the US Supreme Court had consistently refused to revoke any provision of the constitution.
He said parliament had adopted the 17th Amendment strictly in consonance with Articles 238 (amendment of constitution) and 239 (constitution amendment bill) with two-thirds majority.
Therefore, no higher touchstone was available with the court to nullify the amendment, he said.
The apex court could only strike down an amendment if it was passed by parliament without a two-thirds majority, he said.
He argued that there was no precedent available in the judicial history where the apex court had declared invalid any provision of the constitution on the grounds that it was against the Objectives Resolution or the basic structure of the constitution.
He said that when President Musharraf assumed power as the chief executive, Pakistan was a pariah state, but now it was regarded as a responsible member of the comity of nations and it was once again functioning as a fully democratic country.
By holding fresh elections to the assemblies and passage of the 17th Amendment, the
criteria laid down in the
Zafar Ali Shah case was no longer applicable and it could not be construed as limiting the constitutional power of the validly elected parliament, he stated.
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