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The Supreme Court resumes hearings on the challenges to the 21st Amendment case today (Tuesday). Last month, the Supreme Court admitted petitions by the Lahore High Court Bar Association (LHCBA) and others against the formation of military courts under the 21st Constitutional Amendment.

Some of the petitioners argued that setting up of military courts establishes a parallel judicial system that goes against the salient features of the Constitution, which guarantees the right to a fair trial.

Dawn spoke to Asma Jahangir, former President Supreme Court Bar Association on SCBA’s perspective on the amendment, which is different from the LHCBA petition.

The latter has challenged the amendment on the grounds that the Constitution has a basic structure, which has been affected by the 21 Amendment. This argument is not part of the SCBA petition.

Q: Why is SCBA’s perspective on the challenge to the amendment different from the LHCBA’s?

A: A question arises of whether the Supreme Court should have the power to strike down a constitutional amendment, as is being requested by the LHCBA through its petition when the parliament has supremacy over the apex court. The court can strike down a law but not an amendment to the Constitution. However, the Supreme Court judges have the power to interpret an amendment, which is what the SCBA is expecting them to do and what we have also asked the court through our petition.

Q: Can the judiciary determine the salient features or basic structure of a Constitution or is it only the parliament’s purview?

A: When we discuss, in court, the basic structure or salient features of the Constitution, we give appointed judges the power to determine the nature of future constitutions. This is not the job of the courts. It becomes especially problematic, when the Constitution has been amended several times by dictators. For example, Is the Federal Shariat Court introduced by the military regime of Ziaul Haq in 1980 and subsequently protected through the eighth amendment part of the basic structure or not? Similarly, is the clause introduced by Gen Pervez Musharraf making graduation degree a prerequisite for candidates contesting the general elections, in a country where most people are not graduates, also part of the basic structure? If the answer is yes, then the Constitution requires radical changes.

Q: If the Supreme Court rules that only the judiciary can determine the basic structure of the Constitution then what would be the impact?

A: The power and authority of the parliament would be drastically curtailed. There would be a challenge to every constitutional amendment passed by the parliament in future. I understand that in countries such as India and Bangladesh, the judiciary has passed rulings regarding certain salient features of constitutions but this has also drawn a lot of criticism.

— Text by Nasir Iqbal

Published in Dawn, February 24th, 2015

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Comments (18) Closed

Ahmed USA Feb 24, 2015 07:45am

Asma Jahangir's logic is injudicious... she should know that most of our parliamentarians are neither law graduates nor they are technocrats with years of experience... ground reality is that her logic can only work "better" in developed countries and not in a third world country like ours where corruption, nepotism, sectarianism and favoritism is rife... here laws are made to protect self-interest and not by keeping the interest of the people in mind... yes we do need "competent" judiciary to not only “interpret” such laws but also be able to “strike them down” when necessary...

Syed Ahmed, Canada. Feb 24, 2015 07:54am

Not all in the parliament are graduates and there may be some forged degree holders. Also under Pakistani law, being illiterate and uneducated is no bar to run for parliament. How can a parliament having jokers enact good laws therefore the apex court must keep a check on all amendments.

Kiran Feb 24, 2015 08:29am

This lady keeps flip-flopping regarding the judiciary role. Economics of law practice drives her opinions...

NAZ Feb 24, 2015 08:49am

well-----------nice hair cut!!!!!!!!!!!!!

Akil Akhtar Feb 24, 2015 09:19am

Please! spare us wisdom from Asma jahangir an anti Pakistan army activist......

I. Ahmed Feb 24, 2015 09:44am

Typical Asma Jehangir - you are right and he/she is not wrong!

Arsalan I. Sheikh Feb 24, 2015 09:54am

A functioning courts and dispensation of justice could have avoided the need for Military courts.

khanm Feb 24, 2015 10:13am

The constitution is butchered,murdered,distorted for the political gain... it was never meant for general public. let us rewrite the constitution by a third party who has nothing to do with government or politics. Totally neutral.Folks.We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution and that should be our spirit...

Imran Ahmed Feb 24, 2015 10:27am

Thank you for clarifying this very important distinction between interpreting the constitution and the power to strike down an amendment. Parliament must retain its supremacy otherwise our system of democratic government becomes nonsense.

Mian Shahid Mehmood Feb 24, 2015 10:53am

In disagreement to Asma Jhanghir, SC has constitutional power of judicial review of any law or amendment passed by the parliaments in Pakistan. Secondly, it should have been proper for the legal expert (lady) to hold her patience because the matter was sub judice before the court, so she should have withheld her views or she should have the courage to appear before the SC to vent her views known to the judges. Her view at this juncture are highly against the professional ethics.

Mustafa Feb 24, 2015 11:14am

She realizes it is time for all army haters to trim their sails or the vessel will topple over. There is a new Sharif in Islam Town.

M Rafique Feb 24, 2015 11:18am

Perhaps she is looking towards power corridors

Hope Feb 24, 2015 11:46am

Asma jehangir does not know the ground realities about Pakistan.

muhammad Feb 24, 2015 01:38pm

fake judge in our country can't do anything about anybody.

Shamain Feb 24, 2015 01:58pm

Her strings are pulled in endia

Zulfiqar Haider Feb 24, 2015 04:47pm

Neither the parliamentarians are graduated / technocrats nor are our judges selected through a judicious system. The fact that no justice is available in Pakistan. Military courts are required. We all must endeavor to see that only deserving people make it to parliament. I agree with Asma Jahingir.

Parvez Feb 24, 2015 10:51pm

Flawed argument ........ because our Parliament functions only for itself......and sadly our judiciary functions on a selective basis.

Ghaznavi Feb 25, 2015 07:41am

Words of wisdom from Najam Sethi's lawyer!!!!