ISLAMABAD: After intense argumentation over the course of nearly five months, the Supreme Court finally closed the hearing of challenges to the 18th and 21st amendments on Friday.

“The judgment is reserved,” announced Chief Justice Nasir-ul-Mulk at the end of Friday’s proceedings after Attorney General Salman Aslam Butt wrapped up his arguments in defence of the amendments.

The chief justice was heading a 17-judge full bench, where all four provincial governments – through their law officers – also supported the passage of the 21st amendment and adopted the AG’s arguments.

The Supreme Court had jointly heard petitions challenging the 18th and 21st amendments to determine whether the 1973 constitution had a certain salient or basic structure that cannot be touched, even by parliament.

A total of 42 constitutional petitions were before the court of which, 29 dealt with challenges to the 18th amendment and 13 challenged the 21st amendment.

On Friday, Justice Qazi Faez Isa observed that like others, the court also wanted to see religious extremism curbed and terrorists punished as soon as possible.

But the federal government’s discretion to transfer terrorism cases to military courts is a kind of pick-and-chose and instead of fighting the menace of terrorism, the process was being delayed and slowed down, the judge observed and asked the AG to explain how selecting a particular forum was justified. “We are concerned about this procedure,” he observed.

The chief justice also emphasised the need for a law to determine which cases fell under the ambit of ordinary courts, anti-terrorism courts or military courts and, therefore, should be transferred for trial.

The AG, however, clarified that Section 26 of the General Clauses Act clarifies these things, adding that he already had submitted the procedure being adopted by the military courts before the court.

He argued that the appointment of judges through a parliamentary committee would strengthen the judiciary because the judicial commission only nominates judges and the committee approves the same.

During proceedings on Friday, Justice Asif Saeed Khosa regretted that many problems in Pakistan were caused by a lack of uninterrupted democracy and recalled that the graduation condition for parliamentarians was imposed to disqualify the late Nawabzada Nasrullah Khan.

Referring to the concept of party heads under Article 63(a) of the Constitution, which deals with the disqualification of parliamentarians who violate party decisions, the judge observed that this concept had come into the constitution in the context of a political development. Many political party leaders were forced to go into exile, such as the late Benazir Bhutto, Altaf Hussain or the leadership of the PML-N, allowing for the formation of new groups within the party. Only strengthening democracy will help end such issues, the judge said.

In his formulations, the AG stressed that the constitution does not confer upon any court, including the Supreme Court, the jurisdiction to question the validity of a constitutional amendment passed by the parliament in accordance with Article 239 of the Constitution.

Published in Dawn, June 27th, 2015

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