Are all the constitutional amendments, invalid?

[Awesome]

SC asks: can assembly make massive amendments?

By Sohail Khan

ISLAMABAD: The Supreme Court on Tuesday allowed Adviser to PM and Chairman Implementation Committee on the 18th Amendment, Senator Mian Raza Rabbani, to appear before the court to present his views.

A 17-member larger bench of the apex court, headed by Chief Justice Iftikhar Muhammad Chaudhry, is hearing identical petitions challenging certain provisions of the 18th Amendment with particular reference to the formation of a Judicial Commission for the appointment of superior courts judges.

Other members of the bench are Justice Javed Iqbal, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S Khawaja, Justice Anwar Zaheer Jamali, Justice Khilji Arif Hussain, Justice Rehmat Hussain Jafferi, Justice Tariq Parvez, Justice Mian Saqib Nisar, Justice Asif Saeed Khan Khosa, Justice Ghulam Rabbani and Justice Khalilur Rehman Ramday.

During the hearing, Chief Justice Iftikhar Muhammad Chaudhry said the case is not whether the judiciary should be independent, but the question is how the independence of the judiciary should be protected and there was difference in the point of view in this regard.

While giving his remarks, Justice Javed Iqbal said that this isnot a constituent assembly. He added that by keeping in view the doctrine of electoral mandate they have to observe whether this assembly can bring large-scale changes in constitution.

During the course of hearing, Senator Waseem Sajjad, counsel for the Federation, informed the court that Senator Raza Rabbani wants to appear before the court to present his views on the case. The court observed that Raza Rabbani would be welcome and would be called when be needed.

The chief justice said that Rabbani is allowed to appear before the court, and that the court would be pleased to hear him. Akram Sheikh, counsel for one of the petitioners Nadeem Ahmed, submitted that in the last three years several efforts were made to weaken the institution of judiciary.

He contended that the chief justice was suspended on March 09, 2007, while on November 03, 2007 the executive ambushed the judiciary and now once again efforts are under way to weaken the judiciary.

He submitted that when the government formulates the media or textile policy the concerned people were approached for their opinion but in the judges appointment case they did not discuss the matter with the judiciary. At this Justice Ramday remarked that judges were neither affectees nor stakeholders, but the custodian of the law.

Justice Jawad S Khawaja asked Akram Sheikh whether the draft of the 18th Constitutional Amendment was available in other regional languages to which he replied in the negative. Justice Tassaduq Hussain Jillani asked Akram whether the executive in the UK interfered in judicial matters or not. “Was judiciary in Britain asked to give opinion before any change was effected in the modus operandi of the judges” appointment? Or, was Parliament made part of the process?

Akram Sheikh replied that in Britain, the executive and the judiciary did not interfere in each other’s matters. The CJ asked Akram Sheikh as to what purpose did Article-7 of the Constitution serve when it did not include judiciary in the definition of the state.

Justice Asif Saeed said in his remarks that the Parliamentary Committee had not said this anywhere that the present judicial system has collapsed. During the hearing, Mehmood A Shaikh, Advocate on Record (AoR), submitted an unconditional apology in reply to the show-cause notice that the apex court had issued to him along with Dr Basit on Monday in the same case.

Dr Abdul Basit, however, told the bench that he could not submit his reply as a journalist had taken it from him but did not return. He said that he should be given two weeks to submit his reply and in the meantime allowed to appear before the court in the 18th Amendment case. The chief justice, however, directed him to submit the reply by June 3 and told Mehmood A Sheikh that the bench members would consider his request. Meanwhile, the court adjourned the hearing till today (Wednesday).

Agencies add: The Supreme Court questioned a petitioner whether his arguments were based on constitutional provisions and dealing with violation of basic human rights could turn the parliamentary reforms committee exercise for Judicial Commission by amending the Constitution as unconstitutional.

The bench raised certain queries while conducting proceedings on a plea of Nadeem Ahmed Advocate. When Muhammad Akram Sheikh read out a part of speech delivered by Khan Liaquat Ali Khan to the Constituent Assembly on March 7, 1949 ahead of adoption of Objectives Resolution, Justice Mian Saqib Nisar remarked that founding father of the 1973 Constitution did not have Objectives Resolution before him.

“Why was not it considered at that time and why it was brought into the Constitution by a martial law administrator through insertion of Article 2-A!” he questioned. He asked him how 1973 Constitution could be interpreted on the basis of Article 2-A.

Justice Asif Saeed Khan Khosa questioned: “do people reserve the right for modalities while keeping the ideals intact?” The Chief Justice asked him to explain which mandate was given to public in 1970 through Legal Framework Order.

“Certain aspects were not touched by the Supreme Court at that time and left for the Constituent Assembly,” he added. Regarding independence of judiciary, he remarked: “It is nobody’s case. Issue is how to secure independence of judiciary. Both sides are pressing for the independence of judiciary. Both have their own viewpoints.”

To Sheikh’s request for making the constitutional committee’s in-camera briefings public, the Chief Justice replied that so far the judiciary was concerned it was made public. Akram Sheikh citing mechanism for appointment of judges practised in various countries maintained that the mechanism of judicial commission would destabilise the system.

Justice Tassaduq Hussain Jillani told him that in the UK mode of appointment of judges had been changed. “Were judges there consulted over the issue?” he asked. Akram Sheikh contended that criteria for elevation of High Court judges were laid down in the Amendment but it could violate Article 209. He said the official functionaries sitting in the commission would acquire powers of sitting Chief Justice of Pakistan.

Ok this is new for me, apparently, to make large scale constitutional amendments you need to have a constituent assembly in place. There is some sort of pre-election declaration that constitutional amendments would be made by the incoming assembly...

Anyone got the specifics?

 

[H2O3C4Nitrogen]

another dimension of Pandora's Box . . . !

Now these guys would be fighting over the validity of amendments...

 

[sparklingway]

Ok this is new for me, apparently, to make large scale constitutional amendments you need to have a constituent assembly in place. There is some sort of pre-election declaration that constitutional amendments would be made by the incoming assembly...

The remarks were clearly regarding the issue of "basic structure", not in this specific context i.e. the 18th amendment.

The issues at hand are:-

1) Has the 18th amdt violated any constitutional limits?
2) Is there any thing such as the basic structure?
3) Has the 18th amdt changed the basic structure of the constitution?
4) Can parliament change the basic structure if there is such a thing?
5) Are constitutional amdts subject to judicial review?
6) If they are what is the role of the judiciary? Should it only protect fundamentals like rights or protect the basic structure if it exists?
7) Do Judicial appointments by parliamentary commission violate the independence of the judiciary i.e. the separation between the executive, legislature and judicature?

Possible answers:-

1) Most probably not
2) Kind of a mixed bag here certainly there will be addendums and notes by judges to the majority opinion if the majority deems there is no such thing as a basic structure. It opens a pandoras box, read my conclusion.
3) Most probably not
4) Highly unpredictable but if they deem there is no such thing as a basic structure then it is unlikely that they will explore this area in the judgment
5 and 6) Probably yes and probably only protection of rights and separation between pillars of state
7) Highly unpredictable but CJ and the new batch of judges seem to have no major reservations here

If the SC deems that there is such a thing as a basic structure, and it is the duty of the SC to protect the basic structure then we are in for a very bumpy ride. Like the Indian SC created a crapload of problems with its "basic structure" doctrine (rejected an amdt, parliament legislated new amdt that SC can't check amdts, SC threatened to throw away that amdt and so on but has affirmed the doctrine yet reduced the limits of the basic structure), ours can create a lot of problems as well.,

e.g. If there is a legislature that deems it necessary to seek a separation between state and religion through constitutional amdts (unlikely but hypothetical), then the SC will become the problem here.

Totally unpredictable judgment. Majority of the lawyers (not the wise ones necessarily) want to challenge the amdt owing to anti-government thinking rather than legal objections. Ali Ahmed Kurd, Aitzaz Ahsan, Munir Malik, Wajihuddin Ahmed and even Justice Nasir Aslam Zahid are trying to find a neutral middle ground.

As the SC has not appointed any amicus curiae either, it seems that the judiciary has a set mood on the issue already. (also a possible reason not to appoint any amicus curiae was the fact that most learned and leading constitutional lawyers in the country were Aitzaz Ahsan and Hamid Khan, one is a party member of the govt other is counsel for the lawyers community and the sole remaining top notch mind Makhdoom Ali Khan has shown no intention of coming face to face with the superior judiciary in such matters since he resigned from the post of the AG when General Sb tried to kick out the CJ in March 2007).

 

[BATMAN]

This judiciary have its own interpretion of law.
Some times they just dictate their rulings.
On the first place executive order... without paliament's approval has no legal grounds... hence all rulings under the present CJ are invalid and all granted immunities by court are illegal and they all will be trialed for tempering with law when Zardari will be out.
At the moment Judiciary is trying their best to find reasons in legal interpretaion to justify Zardari as President of Pakistan, who came to power when elected members voted for him were asked to show photos of their vote.
This breach of law in an affair which matters most to Pakistan was validated by iftikhar ch. because he was granted a job where he can earn billions.

 

[sparklingway]

This judiciary have its own interpretion of law.

The superior judiciary interprets the law. The lower judiciary works on a codified legal process. They don't have an "own interpretation" rather it is their job to interpret it.

Some times they just dictate their rulings.

Do you mean to suggest the SC showing its displeasure over certain matters and asked them to be worked out in a certain manner?

On the first place executive order... without paliament's approval has no legal grounds...

Executive orders are limited as to their scope and require no parliamentary approval. Executive orders are used only to release discretionary funds, changes in the rules of business and do not change the legislature in any way and hence are in a completely different world than the legislature.

hence all rulings under the present CJ are invalid and all granted immunities by court are illegal and they all will be trialed for tempering with law when Zardari will be out.

CJ was thrown out extra judicially, illegally and unconstitutionally. If you happen to have read the decision of Iftikhar Muhammad Chaudhry v. The President of Pakistan (and other petitions concerned cases CP 21/2007, or as you may call it CJ case), then you would have realized that it states that Iftikhar Chaudhary in fact remained as the CJ as he was never removed through due process or resigned and hence there was never even a need to "restore" him rather he should have just come back and started functioning.

The Executive Order was a merely formal letter. Thrown out extra constitutionally required bringing in back through unusual ways as well.

Iftikhar Chaudhary's approval ratings are most probably above 60%. The public trusts the superior judiciary with protecting its interests, something it is not entirely tasked to do. If you cannot even comprehend the public mood and respect it, I guess you cannot appreciate anything but your own snobbishness.

Here is the judgment. I do not think you'll go through 264 pages of what is a fairly well written judgment.

http://www.supremecourt.gov.pk/web/user_files/File/ConstitutionPetitionNo21OF2007.pdf

At the moment Judiciary is trying their best to find reasons in legal interpretaion to justify Zardari as President of Pakistan, who came to power when elected members voted for him were asked to show photos of their vote.

Clearly you are alien to anything logical. Asif Ali Zardari was elected through due process, the SC cannot in any way declare that is not true. If your mind cannot accept AAZ as the President then it does not mean that he is constitutionally our President. Your feelings and the law are entirely different things.

This breach of law in an affair which matters most to Pakistan was validated by iftikhar ch. because he was granted a job where he can earn billions.

Now Iftikhar Chaudhary and the whole superior judiciary is corrupt as well. Holy Shamoly, you cannot leave any pointless allegations, can you?

Which affair anyways?

 

[JusticeMuzaffar]

i have posted an article on another thread related to the constitutional amendments.
underneath link will redirect you to that thread.

http://www.defence.pk/forums/strategic-geopolitical-issues/62019-constitutional-amendments.html