Chief Justice of Pakistan (CJP) has maintained Pakistan will succeed on every front only if fundamental rights are given to the people.
CJP made this observation while presiding over 17-member larger bench of Supreme Court (SC) here Tuesday during the course of hearing of a set of identical petitions challenging certain provisions of 18th amendment.
“We should keep in mind saying of former British Prime Minister Churchil that the secret to the development of any country lies with its independent judiciary. If justice prevails in the country then it will win the war. If fundamental rights are ensured then Pakistan will make progress on every front”, CJP observed.
“Parliament is our own parliament. We will be here if assemblies and democracy are here. We have repeatedly said in the court no one should talk about dissolution of assemblies. Every institution is functioning. There is no threat to political system and difference of opinion can not be dubbed as confrontation”, he further remarked.
Giving the arguments during the hearing of the case counsel for federation Sardar Ghazi said SC was not authorized to declare constitutional amendment void.
Citing to Surah Al-Nisa he held that it was ordained in the surah that “return the trust to the people and do justice among the people if any conflict arises.
“If this commandment is judges specific. Doing justice is obligation of every one. The fault does not lie in the system but those who run the system commit mistakes. System is running successfully since the last 600 hundreds in UK The system kept on functioning successfully till 1958. This was polluted through the martial law imposed by general Ayub Khan . Then the problems continued to emerge. The societies are submerged if every one thinks that dispensation of justice is the domain of only courts and they have no role to play in this respect”, Justice Ramday remarked.
Sardar Ghazi submitted the appointment of judges be made on the principle of merit and appointments through favoritism would not meet the ends of justice.
“If government thinks so that the independence of the judiciary will not be affected in case the procedure of the induction of judges is changed”, Justice Tassadaq Hussain Jillani observed.
Sardar Ghazi submitted the appointment of judges was not made in transparent manner earlier while the present procedure was transparent and secure.
“ Wherefrom the government will bring angels. Some one has to become judge. There is no pressure group among the lawyers who could mount pressure on chief justice or senior judges. Efforts were made in every era to induct such judges who could fulfill the desires of those sitting at the helm of affairs. Either it is martial law or democracy the rulers have been endeavoring to appoint such judges who can comply with their orders”, justice Javed Iqbal remarked.
Another counsel for federation Ibrahim Satti said that amendments had been introduced in every era in line with the requirements. If it is not done so then revolution may come”, he added. As many as 92 amendments had been made in Indian constitution from 1951 to 2005. Parliament brought amendments in the constitution in reaction to judicial decisions”, he added.
“You are frightening us by presenting such references”, CJP Iftikhar Muhammad Chaudhry remarked.
In Pakistan the constitutional amendments are not open to judicial review. In Aasma Jillani case, the steps taken by Gen Yahya Khan were indemnified despite the fact that he was declared usurper in the verdict. Prior to 18th amendments, 14 amendments were introduced in the constitution and 8 among them were challenged in the court. It was maintained in Lawyers forum case that the court could not even touch the constitutional amendment. Besides CJP, Justice Javed Iqbal is also signatory to this verdict”,. Ibrahim Satti submitted.
“The matter related to 17th amendment came under discussion in Sindh High Court case. The court dismissed the article 270 (AAA) which was part of the constitution. No one could dare to present it in the parliament”, CJP observed.
“It was being practiced in true letter and spirit despite the fact that it was not part of the constitution.
“November 3 steps had led to mutilation of the constitution”, Justice Javed Iqbal remarked.
Counsel for federation said a written constitution could not be subjected to judicial review. Article 5 of Indian constitution was mere a showpiece.
“Article 6 is also a show piece in our constitution. If any trial is held under this article at any time it will start from 1956 when first constitution was abrogated. People were not taken into confidence at any stage of the process of constitution making in Pakistan and India”, Justice Javed Iqbal remarked.
“If it is stance of federation. The constitution be not insulted this way:, justice Asif Saeed Khosa observed.
“I am giving answers to the questions which have been raised here”, counsel for federation said.
“This question was raised here only that if the constitutional committee deliberated over the proposals given by the people. The elected members are representatives of the electorates of their constituencies”, CJP remarked.
Ibrahim Satti said “the constituency rather than people is represented in the assembly. Non casting the vote is an offence in France. In Pakistan turn out of the voters does not go beyond 40 percent. Parliament has full authority to introduce amendment in the constitution. The courts can not nullify these amendments. The constitutional amendments can not be challenged directly. However if there is defect in the procedure related to the amendment it can be challenged in the court. Constitution making is mandate of the parliament and interpretation is job of the judiciary. No one can reject the courts interpretations. It is our desire the courts pronounce such verdicts that other countries including US should follow them, he submitted.
“You are talking of US and other countries. How can the other countries follow our footsteps as neither assemblies are dissolved therein nor martial law is imposed”, justice Ramday observed.
No political party raised any objection over 18th amendment and it is approved with consensus”, Ibrahim Satti said.
“How many political parties challenged the November 3 steps of Gen Pervez Musharraf. This was not kept in view in July, 31 decision nor any one gave arguments in this respect”, justice Ramday observed.
Ibrahim Satti said that no one supported Gen Musharraf’s steps. Every institution should work within its ambit. The powers of all the institutions have been spelt out in the constitution, he added.
The hearing of the case has been adjourned till today.