ISLAMABAD Chief Justice Iftikhar Mohammad Chaudhry on Tuesday praised the parliament for undoing a wrong done by the legislature in 1985 (through a constitutional amendment) when it removed the word 'freely' from a clause of the Objectives Resolution that upheld the minorities' right to practise their religion.
“Nobody has the right to tamper with the basic document,” the chief justice observed. He is heading a 17-judge full court hearing petitions against certain clauses of the 18th Amendment, including the limits of parliament's right to amend the Constitution.
“It is strange that not even a single member in the 1985 National Assembly noticed the mistake and allowed the 8th Amendment to pass just like that,” the chief justice observed.
The CJ made the observation in response to arguments by senior counsel Hamid Khan, who recalled how the Objectives Resolution had been made a substantive part of the Constitution through Article 2A.
Hamid Khan is representing six petitioners — the Supreme Court Bar Association, Lahore High Court Bar Association, District Bar Associations of Sanghar, Gujrat and Sialkot and Arshad Mehmood Baghoo.
The word “freely” was deleted from the Objectives Resolution when parliament passed the 8th Amendment after indemnifying all orders introduced through the President's Order No 14 of 1985 and actions, including the July 1977 military takeover by Gen Zia-ul-Haq and extending discretion of dissolving the National Assembly, by invoking Article 58(2)b of the Constitution.
After the passage of the 18th Amendment, the Objectives Resolution now reads “Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their culture.”
The CJ said “Credit goes to the sitting parliament that they reinserted the word back to the Objectives Resolution.”
He said that nobody realised the blunder right from 1985 till the 18th Amendment was passed, even though the Objectives Resolution was a preamble to the Constitution even at the time when RCO (Revival of Constitution Order) was promulgated.
“Doesn't it reflect utter casualness of the then assembly to alter the basic and sacred document,” Justice Jawwad S. Khwaja wondered. Hamid Khan recalled that most legislators from erstwhile East Pakistan had in 1949 opposed the idea of making the Objectives Resolution a part of the Constitution.
“We have not disowned, but owned the Objectives Resolution and today the assembly has accepted it by rectifying the fault,” the chief justice observed.
But Justice Khalilur Rehman Ramday brushed aside conspiracy theories that the members from East Pakistan did not vote in favour of the Objectives Resolution or that “we were butchering the rights of minorities left, right and centre”.
“This is not what Pakistan has done to the minorities and this is not the ethos and philosophy of its people,” Justice Ramday observed.
“The courts are always protecting the minorities in Pakistan,” the chief justice said. He recalled how a member of the judiciary had been taken to task for his involvement in the Gojra incident (July 2009 attacks on the Christian community). Besides, this was also against the teachings of “our religion to discriminate against minorities”.
However, Justice Jawwad S. Khwaja conceded “We cannot shut our eyes or go into denial as intolerance is increasing. All is not honky dory here.”
“But there are certain areas where the role of judiciary is also not something to be proud of,” Hamid Khan said.
Justice Khwaja said the federal government, in its reply to the petitions, had conceded that the people of Pakistan, and not the government, had the power to amend the salient features, whose will they were reflecting.
Citing a number of judgments both from Pakistan and foreign jurisdiction, Hamid Khan tried to prove that even the ouster clauses available in the Constitution could not oust the power of judicial review and that only the amendment made by the constituent assembly could claim the status of a constitutional amendment or claim immunity from judicial examination. “The power to make amendment to the basic/salient feature vests only with the people alone.”
The counsel was of the opinion that the concept of the judicial commission in the Charter of Democracy had apparently been borrowed from the South African model which had the presidential form of government, and not the parliamentary form of government.