ISLAMABAD: A Supreme Court judge wondered on Tuesday if an all-party conference was a new route to seek consensus before proposing major amendments in the Constitution instead of getting a fresh mandate from the sovereign through elections before altering its basic structure.

“We have invented another way than an appeal to the sovereign which we call APC where about 30 people of different political parties sit together and whatever they decide was considered to be for the entire populace,” observed Justice Asif Saeed Khosa.

The judge went on to ask whether the 21st Amendment to the Constitution, which was said to have the support of the entire nation, be equated with that of seeking a fresh mandate by an appeal to the sovereign.

Also read: SC judge says Constitution has concept of basic structure

Justice Khosa was referring to a number of APCs called by the ruling party before taking important decisions with particular reference to weeding out terrorism from the country or addressing the law and order situation in Karachi or Balochistan or any other province.

A similar APC was held before introducing the 21st Amendment.

Justice Khosa is a member of the 17-judge full court of the Supreme Court hearing challenges to the 18th and the 21st amendments which assail the appointment procedure of superior court judges and establishment of military courts to try hardened terrorists, respectively.

Chief Justice Nasir-ul-Mulk heads the full court.

The observation came when senior counsel Abdul Hafeez Pirzada was arguing against the oversight by the parliamentary committee on the appointment of superior court judges introduced through the 18th Amendment.

Mr Pirzada emphasised that the Constitution never takes away the authority of the Supreme Court to intervene if it feels that the Constitution had been drastically changed.

“Will the court sit back and say it has no jurisdiction to interfere if Article 8, which ensures that no law in violation of the fundamental rights can be made, was deleted,” the counsel argued, adding that it was the duty of the apex court to strike down any amendment that affects the basic features of the Constitution.

There are so many contradictory judgments of the courts in the field and the time has come to correct these errors, Mr Pirzada argued, adding that now the time was to clean the slate.

If a mischief is brought to curb a mischief then both must go. Two wrongs never make things right, the counsel argued.

Mr Pirzada recalled how the late Justice Dorab Patel told him what transpired before the announcement of the 1977 Nusrat Bhutto case under which the Supreme Court had vested military dictator Ziaul Haq with the authority to amend the Constitution. He said Justice Patel told him that the judges on the bench had not given the authority to Gen Zia to amend the Constitution, but the verdict was changed late in the night before its announcement by then Chief Justice Anwarul Haq after Advocate Sharifuddin Pirz­ada told the chief justice at a reception that if the authority was not given, Justice Yaqoob Ali, who was retired by Ziaul Haq, will enter the court to seize the office of the chief justice. When the judgment in the Nusrat Bhutto case came, the power was given, Mr Pirzada regretted.

Published in Dawn, June 3rd, 2015

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