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Aitzaz: judicial activism injudicious in some cases

August 07, 2012

Senator Aitzaz Ahsan speaks to reporters outside the Supreme Court of Pakistan during the hearing of former prime minister Yousuf Raza Gilani's contempt of court case. – File photo by AFP
Senator Aitzaz Ahsan speaks to reporters outside the Supreme Court of Pakistan during the hearing of former prime minister Yousuf Raza Gilani's contempt of court case. – File photo by AFP

LONDON, Aug 7: PPP Senator and prominent lawyer Aitzaz Ahsan, who was the lead counsel of former prime minister Yousuf Raza Gilani in the NRO implementation case, has expressed reservations over judicial activism and says it is not being used in equal measure on all matters.

In an interview with BBC News on Tuesday, he said the judiciary was independent and in fact ‘too independent’ and ‘at times even independent of the Constitution’.

Mr Ahsan said the parliament could adopt an amendment to the Constitution with two-thirds majority and such an amendment could not be challenged in the court.

He said Chief Justice Iftikhar Muhammad Chaudhry’s defiance of Gen Pervez Musharraf strengthened democracy but because of subsequent developments questions were being asked about the judiciary.

He said that disqualifying prime minister Gilani was a wrong decision of the court. The case in which he was disqualified was not about disqualification but about court’s jurisdiction.

Mr Ahsan said the Constitution clearly stipulated that the head of state could not be prosecuted.

Then how could the court order prosecution of the country’s president in another country.

He said a statement by the Chief Justice that the judiciary could prevent the parliament from amending the Constitution was at variance with the verdicts of the Supreme Court itself.

A law adopted with simple majority may come under consideration of the Supreme Court which will see whether or not it contradicts any provision of the Constitution. But, Mr Ahsan said, an amendment adopted by the parliament with two-thirds majority could not be challenged in the court.

He also said he saw no threat of a military takeover because the present judiciary had issued some judgments which would prevent imposition of martial law.

Mr Ahsan said the proceedings in the court about chief justice’s son were raising question if the court would be able to maintain balance.

He said on the issue of alleged deals between Dr Arsalan and Malik Riaz the court was deviating from the established principles of investigation.

Mr Ahsan said he did not regret the role he played in the movement for restoration of the Chief Justice and the judiciary. It was a movement of people’s victory.

Responding to a question, he said the People’s Party would win the next elections and again form government because of President Asif Ali Zardari’s experience of forming coalition governments.—Dawn Monitor