ISLAMABAD: The ongoing episode of Axact allegedly awarding fake degrees echoed in the Supreme Court on Monday during the hearing of challenges to the 18th and 21st amendments.

“It is known that the issue of degrees is widespread these days, but the Supreme Court does not need a certificate of any,” quipped Justice Jawwad S. Khawaja, while sitting on a 17-judge full-court Supreme Court bench headed by Chief Justice Nasir-ul-Mulk.

Although the judge did not directly mention any controversy, some legal observers say that the observation was an obvious reference to the degree issue that led to an FIA raid at the offices of Axact.

Also read: Pakistan seeks FBI assistance to probe Axact scam

The full court had taken up petitions against the 18th and 21st amendments in the Constitution that assails the appointment procedure of superior court judges and the setting up of military courts to try hardened terrorists.

The observation came when A.K. Dogar representing the Pakistan Lawyers Forum argued that the concept of the basic structure theory which was outlined by the Indian Supreme Court through the Kesavananda Bharti case in 1973 which in fact stemmed from the 1963 Fazlul Qadir Chaudhry case from the Pakistani courts. This was the case which was taken as a foundation for outlining the basic structure doctrine by the Indian Supreme Court, the counsel observed.

Referring to the 21st amendment, Mr Dogar argued that the Constitution could not be destroyed by manipulating it to suit the executive’s desires, adding that it was wrong to suggest that the setting up of military courts would ensure return of peace in the country. “This is impossible to phrase military court,” he stressed, adding that the military was a military and court was a court.

The Constitution, Mr Dogar said, reflected the aspiration of the people since it was a document meant for all times to come with changes with the passage of time. But its basic foundational value will remain the same since no-one can take away the Objectives Resolution that has now become a substantive part of the Constitution and bound to be followed.

At this Justice Asif Saeed Khosa observed that Pakistani courts had consistently recognised the salient features of the Constitution but it had always preferred to stay away from interpreting the Constitution on the touchstone of the basic structure.

The court asked whether the fundamental rights could be taken away by amending the Constitution.

The fundamental rights could only be amended to improve it or add to it but not abridged because they are part of the basic structure of the Constitution, the counsel replied, but was asked by Justice Ejaz Afzal whether the fundamental rights could be taken away by amending the Constitution. Justice Afzal also said that no fetters could be imposed on parliament, which exercised constitutional power.

Mr Dogar recalled that the fundament rights under the 18th amendment had been added to in the shape of Articles 10A, 19A and 25A and nobody had any grouse against this.

During the proceedings Justice Khosa asked the counsel whether change in society could be brought about without beheadings.

Mr Dogar replied that “we have to follow the Quran and Sunnah at all costs which was the structural base of the Constitution and nothing could be strong if not based on religion”.

The court reminded him that the self-styled Islamic State was also using the name of Quran and Sunnah to advance its cause.

Published in Dawn, May 26th, 2015

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