LAHORE, March 27: The Attorney General told the division bench that the amendments to the Constitution had to be made through LFO by President Pervez Musharraf within his “constitutional dispensation”.
He argued that had the LFO not been introduced, the question regarding the transition of power and good governance would have remained unanswered.
“The referendum order, through which the last year’s presidential referendum was held, is in fact a step towards restoration of democracy,” the AG claimed.
The voting age had been reduced from 21 years to 18 and the total number of the National Assembly seats was also enhanced from 217 to 342 through the chief executive’s order which was made part of the LFO, he argued. “How could the court strike down the LFO which had resulted in the current political setup?,” he asked.
He claimed that the sitting legislature had to be protected through the LFO, adding that none of the sitting legislators had challenged the order as yet before a court of law. “No wonder that none of the legislature has challenged the LFO,” remarked Justice Jilani on this argument.
The AG submitted that if the petitioner’s argument that the life of the amendments introduced through the LFO had lapsed on October 12, 2002, (three years after the military coup) was to be accepted, then voters of 18 years of age would not have cast their votes in the last general elections nor an effective representation would have resulted through enhancement in the NA seats.
He defended the increase in the NA seats on grounds that it had brought down the level of the election expense since the candidates had to run their campaign in relatively smaller constituencies.
Makhdoom also cited a judgment of the Sindh High Court delivered in 1990, saying that it had dismissed a petition challenging the 8th Amendment on grounds that such an amendment was not contravening to the basic structure of the 1973 Constitution and the democratic setup was already working in the light of this amendment. He pointed out that the court had given this ruling although the then AG, Yahya Bakhtiar, had also supported abrogation of this amendment.
To a court query, he said the SHC judgment had been upheld by the Supreme Court on the same grounds.
“This learned bench is also seized of the identical situation when a democratic setup has come into existence by way of the LFO. This constitutional package does not offend any Article of the 1973 Constitution,” the AG contended.
He said the legislature in 1985 had given cover to a series of constitutional amendments introduced by Gen Ziaul Haq between 1977 and 1985 through the 8th Amendment and this constitutional precedent could not be ignored by the court. Justice Jilani observed that the legislature in 1985 had accepted the Revival of Constitution Order (RCO) first and then had given a legal cover to the constitutional amendments. But in the case of the LFO, it was yet to be accepted by the two-third majority of the sitting Parliament and the petitioner was seeking the interference of the court in this matter.
“The government is trying to hold negotiations with the opposition on the LFO issue and this fact has to be taken into consideration by the court,” replied the AG. He argued that the SC in the Zafar Ali Shah case had determined three salient features of the 1973 Constitution — independence of the judiciary, federalism, parliamentary form of government — and the LFO did not collide with either of these features.
He contended that the LFO did not contain the constitutional powers of the Supreme Court granted to it under Article 184 and 185 of the Constitution and was not repugnant to the independence of the judiciary in any manner.
Referring to the LFO provision regarding the three-year extension in the retirement age of the superior courts judges, he said it was just a procedural matter giving an opportunity to the judges to work for extra three years. He referred to the judicial system of the US, saying that judges there were given a lifetime appointment and could retire at any time, on their own.
The AG argued that Article 58(2)-B of the Constitution was not “plucked out of air”. Rather it had a long constitutional background and history. He pointed out that under the English law the prerogative to dismiss the parliament lay with the crown, though such power had never been used there for centuries owing to political stability. He also quoted a precedent from Australia that Governor General Sir John Karr dismissed both the lower and upper houses in 1975 despite the fact that he did not have such power. Yet after due consultation with the chief justice concerned, he used his “prerogative” which was not challenged afterwards.
The AG would resume his arguments on April 3.