Constitutional amendments can’t be challenged in Supreme Court: Aitzaz Ahsan

Former president of Supreme Court Bar Association (SCBA) Chaudhry Aitzaz Ahsan has said amending the constitution is the right of the parliament and the constitutional amendment can not be challenged in a court.

People of Pakistan are currently witnessing an interesting but very important row between two groups of lawyers. The first group, which supports the supremacy of democracy and the parliament, is represented by Aitzaz Ahzan, Ali Ahmed Kurd, Justice Tariq Mehmood and others.

The other group which supports the supremacy of bureaucrat sittings in the Supreme Court and is also known for its right wing (pro-Taliban, pro-Jamaat-e-Islami and pro-Imran Khan tendencies) is represented by Akram Sheikh (of Jamaat-e-Islami), Hamid Khan (of Imran Khan’s PTI) and Abdul Hafeez Pirzada (of ‘the establishment’).

The row is about the 18th Amendment Law that whether or not the Parliament has the authority to amend the basic features of the Constitution. The two groups have a conflicting view over a point whether or not any court of law can be moved in case any such amendment occurs. (Source)

Key arguments

Aitzaz Ahsan opined that the Parliament was empowered to change the fundamentals of the Constitution and the apex court could not nullify the Constitutional amendment, while Akram Sheikh had filed a petition on behalf of Advocate Nadeem Ahmed in the SC challenging the establishment of the judicial commission through the 18th Amendment. The SCBA’s former president said formula of judges’ appointment does not harm the independence of the judiciary, as the names of the judges will be proposed not by the parliamentary committee but by the Judicial Commission headed by the CJP.

Aitzaz said the apex court can only give suggestions regarding the amendments but cannot amend the constitution by its own. Ahsan argued, according to the Article-238, 239 neither any Constitutional amendment can be challenged in any court nor the powers of the SC to hear petition. It was 2005 Lawyers Forum case verdict, where the court ruled that the SC could not overrule the Constitutional amendment, Aitzaz said, adding the LFO was challenged in that case. Zafar Ali Shah is the only case, which sets limits for the constitutional amendments but these restrictions were meant not for the Parliament but for a single person i.e. Gen (Retd.) Pervez Musharraf.

Hamid Khan contradicted with Ahsan’s arguments and said that such judicial commission did not exist anywhere in the world, adding that if Indian Supreme Court could nullify Indian Parliament’s amendment then why not Supreme Court of Pakistan could not do so. He said that within a week SCBA would file a petition in the SC against 18th Amendment.

Further arguments

Explaining, Barrister Ahsan said, the 18th Amendment had been unanimously adopted by all the major political parties and even though parties opposing some provisions voted in favour of the amendment by adding dissenting notes.

If the 17 judges of the Supreme Court strike down the amendment adopted by the representatives of the 170 million people, it would naturally be seen as judiciary pitted against the legislatures, Barrister Ahsan feared. He said upsetting the amendment would spark convening of meetings by parliament to nullify the effects of any judicial verdict.

“I can cite at least 15 judgments of the Pakistan’s Supreme Court as well as similar number from the Indian jurisdiction to establish that constitutional amendments cannot be struck down by the courts,” he said.

Barrister Ahsan quoted the Pakistan Lawyers Forum (PLF) case in which amendments inserted in the constitution through the legal framework order were dismissed by the Supreme Court bench of which Justice Iftikhar Mohammad Chaudhry was also a member only because the amendments were subsequently validated by the parliament through the 17th constitutional amendment.

Referring to the Zafar Ali Shah case, Barrister Ahsan recalled that the Supreme Court had prescribed limits not to touch the basic feature of the constitution because it was granting the right of amending the constitution on an emergency basis to a single person who was a dictator then.

Articles 238 and 249 of the constitution also take away the right of the judiciary to strike down any constitutional amendment, he said, adding what the apex court could do on the petitions challenging the 18th Amendment was to suggest certain improvements after interpretation but not modifying it by itself.

Barrister Ahsan accused the lawyers who used to appear before the Dogar court and PCO judges of advocating against the supremacy of the parliament. Source: Dawn, 21 April 2010

Advocate Akram Sheikh (of Jamaat-e-Islami) Advocate Akram Sheikh who alleged that Mr Ahsan had appeared for the independence of judiciary only once in his career by defending the chief justice against his suspension. “Mr Ahsan appeared on behalf of the federal government in the 1996 Al-Jihad Trust case to oppose the independence of judiciary”, said Mr Akram Sheikh who is representing one of the petitioners who have challenged the 18th Amendment. “Mr Ahsan also used to appear before the military courts, he alleged suggesting that he should not pelt stones while sitting inside a glass house.” On apex court’s authority, he said that the Supreme Court could not only strike down the 18th Amendment but could also suspend it as an interim measure.

Abdul Hafeez Pirzada believes that parliament that had made significant changes in the constitution through the 18th Amendment is not a constituent assembly and quoted the 1975 Indian case, namely Indira Gandhi versus Raj Narayan, in which the Indian Supreme Court had struck down certain amendments. Amendments are meant to improve things and not to destroy things, he said.

On the other hand, Advocate Tariq Mehmood said the basic structure of the constitution was something which in practical terms did not exist, adding that the constituent assembly which adopted the 1973 constitution also inserted Article 238 and 239 under which no constitutional amendment could be challenged before the courts. He recalled that when the idea of judicial commission was suggested through the Charter of Democracy, the Pakistan Bar Council had tried to claim the credit by stating that the concept was first coined by it. Source

Related article:
Dr Shahid Masood as Chief Justice Iftikhar Chaudhry’s Jan-Nisar: Dangerous portents – by Kamran Shafi

Tahir Sarwar Mir’s article in Express:



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