ISLAMABAD, Aug 16 Chief Justice Iftikhar Mohammad Chaudhry observed on Monday that the sovereignty of parliament did not mean it enjoyed unfettered powers to introduce any amendment to the Constitution and asked “should we accept if tomorrow parliament declares secularism, and not Islam, as the state polity”. The CJ made the observation when Advocate Iftikhar Ahmed Mian, the counsel for the federal government, argued that parliament enjoyed unlimited powers, but later explained that the Constitution was based on Islam and that could not be altered.
“Can we afford to follow western parliaments which have decided in favour of gay marriages,” quipped Justice Khalilur Rehman Ramday, a member of the 17-judge full court hearing challenges to the 18th Amendment.
“Will it be called a rightful exercise of authority if tomorrow parliament amends Article 2 of the Constitution which states that Islam will be the state religion,” asked Justice Tariq Pervaz.
Last week, the bench warned of a looming judicial crisis in Balochistan which may be stripped of its judges in September. The government informed the court on Monday that the problem would be addressed in due course of time and said that the hearing on 18th Amendment petitions should continue unhindered.
The one-year tenure of four additional judges of the Balochistan High Court will expire on Sept 5. However, since the clauses in 18th Amendment relating to appointment of judges have been challenged, the government cannot set up the parliamentary committee which is to recommend the names to the judicial commission for appointment of judges.
“Prime Minister Yousuf Raza Gilani has consulted with Law Minister Babar Awan and the law secretary on the issue, but no final decision has yet been taken,” Attorney General Maulvi Anwarul Haq said, adding that the matter would be sorted out in due course of time.
“The federation should have taken steps because there may be a judicial breakdown in the province after Sept 5,” the chief justice said, adding that at least the government should have started the process of how to regularise additional judges of the high courts of Balochistan, Khyber Pakhtunkhwa and Punjab.
Justice Tassaduq Hussain Jillani, however, said that the Supreme Court had the jurisdiction to issue a judicial order on the issue.
Advocate Shahid Hamid, the counsel for the Punjab government, argued that the old system of appointment of superior court judges was flawed and misused and this required a change. Citing his experience in the appointment of judges as the former Punjab governor, he said the new system envisaged in Article 175-A of the Constitution was workable, acceptable and functional.
The counsel was asked by Justice Saqib Nisar if the Indian theory of basic structure could be used as anvil for striking down a constitutional amendment. The counsel replied in the negative and said that till now the court had exercised restraint in such matters.
