• Legal fraternity asserts parliament cannot tamper with basic structure of Constitution
• Tarar says FCC to hear matters of Article 184(3), constitutional interpretation
ISLAMABAD: The Lawyers’ Representative Convention on Wednesday expressed reservations over the appointment procedure of the first Chief Justice of the proposed nine-judge Federal Constitutional Court (FCC), pointing out that the procedure seems to give an upper hand to the executive and may become politicised.
While the Pakistan Bar Council (PBC), as well as the bar councils and associations from Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan were unanimous about the competence of parliament to bring a constitutional amendment, they had reservations over any changes being made to the basic structure of the Constitution.
Organised by Supreme Court Bar Association (SCBA) and attended by elected leaders of the legal fraternity as well as Law Minister Azam Nazeer Tarar, the convention adopted a declaration expressing reservations over the process being adopted for the legislation, criticising the secrecy surrounding the move instead of holding meaningful dialogue with all stakeholders.
To allay their apprehensions, Mr Tarar explained that the first CJ-FCC would be appointed by the president on the PM’s advice, while the rest of the judges would be appointed with CJ-FCC’s consultation.
On the other hand, the rest of the appointments of SC and high court judges would be done as usual by the Judicial Commission of Pakistan (JCP), whose composition would be amended by including four members from both houses of parliament, two each from the treasury and opposition benches.
He said the ultimate purpose of the package was to bring relief to ordinary litigants by ensuring speedy justice, adding that Article 9A would also be inserted in the Constitution, making a clean environment a fundamental right by discouraging smog or pollution of rivers and streams.
Under the package, he said, the JCP would be empowered to recommend retirement or removal of inefficient high court judges through SJC.
But senior lawyer Ahsan Bhoon regretted that constitutional amendments were never made in such a secretive manner.
Regarding the apprehensions about extending the retirement age of judges to 68 years from the existing 65, the law minister suggested the SCBA form a committee inviting all stakeholders to give meaningful suggestions.
PBC Vice Chairman Farooq H. Naek also regretted that the package was drafted without taking the legal fraternity into confidence, but hastened to add that it could be the answer to all the problems the country was facing in terms of constitutional interpretation.
The law minister explained the package was drafted in line with earlier suggestions of the bar councils and associations.
He said all cases relating to the enforcement of the fundamental rights under Article 184(3) or any issue related to the interpretation of the Constitution would go to the FCC, which will have judges from all the provinces and the federal capital.
He said the ‘Constitutional Package’ also contained changes to Article 63A to ensure that the vote of a member is counted despite floor crossing, which warrants disqualification.
Trials of civilians in military courts, however, were not part of the current package due to a lack of consensus, the minister said, despite the fact that there were apprehensions on part of the military leadership that anti-terrorism courts had failed to bring perpetrators to justice.
Besides, he said, a timeline for the appointment of a chief election commissioner was part of the package.
SCBA President Shahzad Shaukat read out the declaration stating that while lawyers accept the authority of parliament to bring constitutional amendment, it had no authority to amend the basic structure of the Constitution.
For a meaningful dialogue, he said, the SCBA would constitute a committee of all bar councils and associations to discuss the issue.
He, however, regretted the call on part of certain sections to observe a strike.
‘No court above SC acceptable’
Separately, speaking to journalists at the Lahore High Court, PTI Senator and senior lawyer Hamid Khan said no other court above the SC was acceptable.
Hamid Khan, who heads one of the two major groups of lawyers in the country, stated that the legal fraternity would not allow ‘unconstitutional’ actions of the government. “We want to see the judiciary grow stronger and more independent,” he added.
He said the amendments of the ‘illegitimate’ government would not be accepted.
Petition against move
In a related development, former SCBA president Abid Shahid Zuberi moved an application before the SC with a request that CJP Isa should immediately place before a three-man committee constituted under the SC (Practice and Procedure) Act, his petition seeking restraining order against the government from tabling the controversial bill before parliament.
Wajih Ahmad Sheikh in Lahore also contributed to this report
Published in Dawn, September 19th, 2024