08-06-2010, 01:25 PM
* AAG says parliament not framing new constitution
* Federation’s counsel says striking down 18th Amend could lead to bloodbath
By Masood Rehman
ISLAMABAD: Justice Jawwad S Khawaja, a member of the 17-judge full bench, on Thursday asked the federal government’s counsel as to who was preventing the federation from initiating high treason proceedings against former military dictator General ® Pervez Musharraf under Article 6 for abrogating the constitution.
The court posed the question when the federation’s counsel, Barrister Bacha, argued that Article 6 of the constitution was not ceremonial and former president Musharraf could be tried under it for violating the constitution. Bacha also said, “I could not consult with the federation on this issue, but I will raise it if I get chance.” The full court, headed by Chief Justice of Pakistan Iftikhar Muhammad Chaudhry, was hearing identical petitions challenging certain provisions of the 18th Amendment with particular reference to the formation of a judicial commission for the appointment of judges to superior courts.
Framing: Additional Attorney General KK Agha said that the theory of basic structure was applied only in India. He said parliament was not framing a new constitution rather it was making amendments to it. He said parliament, having representation of chosen members, was a body to legislate and make amendments.
Similar to other counsels for the federation, Bacha also could not confine himself to his case and gave controversial statements while defending the 18th Amendment. He refused to accept the basic structure of the constitution. Justice Asif Saeed Khosa and Justice Mian Shakirullah Jan remarked that there were some basic principles that had to be followed: they were either written in preamble or in the Objective Resolution. They said the court had already settled the issue in its three different judgments that there was a basic structure of the constitution.
Striking down: Responding to the question, Bacha warned the court that if the amendment was struck down, there was possibility of bloodbath. Justice Khalilur Rehman Ramday asked why the courts were being told of the consequences all the time.
Bacha contended that striking down an amendment could lead to a constitutional impasse and chaos, adding that the country’s current situation had no room for this. He said judicial review of a constitutional amendment was not permissible. He said striking down an amendment would tantamount to introducing a third chamber in parliament.
The lawyer said the democratic system should be excused this time, for survival. He said Article 175-A was not undermining the independence of the judiciary. “Why is parliament proceeding towards such assumptions? If such a situation arises in the future, parliament can legislate over it,” Justice Ramday said.
Bacha said the amendment was for all times to come and there was no harm if there was indulgence and support of parliament on the issue of judges’ appointment. Justice Ramday noted that in the previous mechanism, parliament was involved in the form of the PM being head of the parliamentary system and leader of the House. However, this time, his role had been excluded, he said, adding that the president is also a part of parliament. Bacha said the parliamentary committee was involved in the process to enhance the prestige of the Supreme Court. He said nomination of these members would be made by the PM.
Arguing on the renaming of NWFP as Khyber Pakhtunkhwa, Bacha said the petitioners had failed to realise that Pakhtuns had been a nation and the renaming was strongly related to their centuries-old identification.
* Federation’s counsel says striking down 18th Amend could lead to bloodbath
By Masood Rehman
ISLAMABAD: Justice Jawwad S Khawaja, a member of the 17-judge full bench, on Thursday asked the federal government’s counsel as to who was preventing the federation from initiating high treason proceedings against former military dictator General ® Pervez Musharraf under Article 6 for abrogating the constitution.
The court posed the question when the federation’s counsel, Barrister Bacha, argued that Article 6 of the constitution was not ceremonial and former president Musharraf could be tried under it for violating the constitution. Bacha also said, “I could not consult with the federation on this issue, but I will raise it if I get chance.” The full court, headed by Chief Justice of Pakistan Iftikhar Muhammad Chaudhry, was hearing identical petitions challenging certain provisions of the 18th Amendment with particular reference to the formation of a judicial commission for the appointment of judges to superior courts.
Framing: Additional Attorney General KK Agha said that the theory of basic structure was applied only in India. He said parliament was not framing a new constitution rather it was making amendments to it. He said parliament, having representation of chosen members, was a body to legislate and make amendments.
Similar to other counsels for the federation, Bacha also could not confine himself to his case and gave controversial statements while defending the 18th Amendment. He refused to accept the basic structure of the constitution. Justice Asif Saeed Khosa and Justice Mian Shakirullah Jan remarked that there were some basic principles that had to be followed: they were either written in preamble or in the Objective Resolution. They said the court had already settled the issue in its three different judgments that there was a basic structure of the constitution.
Striking down: Responding to the question, Bacha warned the court that if the amendment was struck down, there was possibility of bloodbath. Justice Khalilur Rehman Ramday asked why the courts were being told of the consequences all the time.
Bacha contended that striking down an amendment could lead to a constitutional impasse and chaos, adding that the country’s current situation had no room for this. He said judicial review of a constitutional amendment was not permissible. He said striking down an amendment would tantamount to introducing a third chamber in parliament.
The lawyer said the democratic system should be excused this time, for survival. He said Article 175-A was not undermining the independence of the judiciary. “Why is parliament proceeding towards such assumptions? If such a situation arises in the future, parliament can legislate over it,” Justice Ramday said.
Bacha said the amendment was for all times to come and there was no harm if there was indulgence and support of parliament on the issue of judges’ appointment. Justice Ramday noted that in the previous mechanism, parliament was involved in the form of the PM being head of the parliamentary system and leader of the House. However, this time, his role had been excluded, he said, adding that the president is also a part of parliament. Bacha said the parliamentary committee was involved in the process to enhance the prestige of the Supreme Court. He said nomination of these members would be made by the PM.
Arguing on the renaming of NWFP as Khyber Pakhtunkhwa, Bacha said the petitioners had failed to realise that Pakhtuns had been a nation and the renaming was strongly related to their centuries-old identification.