ISLAMABAD, July 26 A strange reversal of roles took place in the Courtroom One on Monday where Waseem Sajjad, the counsel for the federal government, was defending parliament's right to adopt the 18th Amendment. When he argued that all constitutions in the world had features and structures and these could be and were amended by parliament, a full bench of the Supreme Court reminded him that the parliamentary committee which prepared the amendment had acknowledged the basic structure theory of the Constitution. The counsel could say nothing after this observation.
The bench is hearing a number of identical petitions challenging the 18th Amendment, especially the procedure for appointment of superior court judges.
Chief Justice Iftikhar Mohammad Chaudhry reminded Mr Sajjad and the bench that the report of the parliamentary committee, headed by Senator Raza Rabbani, was the “most important document”.
“Why run here and there when the committee is accepting the basic feature theory?” the CJ asked and told the counsel to read relevant paragraphs from the report which criticised military dictatorships for passing amendments which altered the basic features of the Constitution.
The paragraphs say “Unfortunately, the Constitution of 1973 was not implemented in letter and spirit and the democratic system got derailed at different times....The non-democratic regimes that took power sought to centralise all authority and introduce various provisions which altered the basic structure of the Constitution from a parliamentary system to a quasi-presidential form of government through the Eighth and 17th amendments.”
When the court asked the counsel to explain his understanding of the 'features' of the Pakistani Constitution, Mr Sajjad said that sovereignty vested in Almighty Allah but was exercised through the chosen representatives of the people, Islamic state, fundamental rights, sovereignty of parliament but within the limits prescribed by the Constitution and the trichotomy of powers, but named the independence of judiciary the last part of the feature.
This gave the bench another opportunity to interject. “Do you (Mr Sajjad) accept the independence of judiciary as one of the features of the Constitution?” Justice Khalilur Rehman Ramday asked.
The counsel agreed. He said everybody accepted the independence of judiciary and parliament also was committed to the independence of judiciary.
Citing a number of cases from the Pakistani jurisdiction, Mr Sajjad tried to establish that the Supreme Court had time and again held that it would continue to confine itself to the limits prescribed in the Constitution and would not look towards the famous 1973 Indian case called Kasavananda Bharti for guidance.
The Indian case coined the concept of basic structure for the first time. However, the bench wanted to know what the counsel meant by 'features'.
Justice Ramday said “Every living thing has accepted universal features. For instance, a person has black or blonde hair or belongs to a particular race, but was the style in which his nails were clipped a basic feature?”
Justice Tassadduq Hussain Jillani asked whether or not the US Supreme Court would intervene if voting rights of states, one of the features of the American constitution, were taken away.
Mr Sajjad retorted by asking why was it being assumed that parliament would not protect people's rights.
Justice Ramday said the court had to determine whether amendments made in relation to the judiciary were in aid of the independence of judiciary or to make it submissive. “We are not assuming anything, but we have to see that the sacred goals of ensuring the independence of judiciary are in conformity with what you are actually doing,” he said.
Justice Ramday recalled that what happened to the judiciary when emergency proclaimed by General (retd) Pervez Musharraf was a core issue during the 2008 general election and almost every party had vowed to restore the sacked judges and ensure independence of the judiciary.
“We have reasons to assume such things because of our history,” Justice Jawwad S. Khawaja said and asked how many fundamental rights had actually been enforced.
Justice Tariq Pervez reminded the counsel that sovereignty belonged to the people who demonstrated it best when they come out on the roads to put pressure on the government to reinstate the judges. Citing a 1947 speech of Quaid-i-Azam Mohammad Ali Jinnah, Mr Sajjad said the founding father had talked about the sovereignty of parliament three times in his speech. The Quaid-i-Azam had envisioned a sovereign parliament based on the western parliamentary system.
“The problem we are facing today is due to non-fulfilment of the guidelines given by the Quaid-i-Azam,” the chief justice observed.
Referring to Article 2A (Objectives Resolution), he said it was made a substantial part of the Constitution through the 8th Amendment. “Was not then it was the wish of the people that the Objectives Resolution be part of the Constitution?” the chief justice asked.