SC moved against proposed changes to Constitution

ISLAMABAD: The Supreme Court was Monday requested to set aside the proposed amendments to the Constitution sought to be introduced through a bill that would transfer the vested powers of the apex court and high courts to the executive and entirely annihilate the principles of independence of judiciary and separation of powers.

Former president of the Supreme Court Bar Association and incumbent member of the Pakistan Bar Council Abid Shahid Zubairi along with other members of the Council filed a joint petition with the Supreme Court under Article 184(3) of the Constitution.

The other members of the Council included Shafqat Mahmood Chohan, Shahab Sarki, Chaudhry Ishtiaq Ahmed, Tahir Faraz Abbasi and Munir Ahmed Kakar. The Federation of Pakistan through secretary Ministry of Law and Justice, speaker National Assembly, chairman Senate, chief secretaries of the four provinces and principal secretary to prime minister and president of Pakistan have been made as respondents.

The petitioners prayed the apex court that separation of powers and independence of judiciary and its powers and functions to enforce the fundamental rights be kindly declared as sacrosanct under the Constitution and beyond the power and competence of the Parliament to withdraw, interfere or tamper with in any manner whatsoever.

They further prayed that the proposed amendments sought to be introduced through the bill be declared ultra vires the basic scheme of the Constitution, principle of separation of powers, independence of the judiciary and fundamental rights enshrined under the Constitution.

The petitioners also prayed the apex court that to restrain the federal government from tabling the bill and suspend the operation of the proposed amendments sought to be introduced through the bill and further restrain the same from being assented to if passed by both houses.

The petitioners questioned whether the independence of the judiciary and separation of powers was a basic/salient feature of the Constitution which could not be amended through any act of Parliament.

They questioned whether the independence of the judiciary was part of the Objective Resolution which had become a substantive part of the Constitution of Pakistan under Article 2A.

Whether the principles as laid down in the case of Al Jehad Trust v. FOP (cited in PLD 1996 S.C. 324) and Asad Ali case and enshrined under Article 175A of the Constitution can be interfered with through a constitutional amendment,” they further questioned

The petitioners further questioned whether a supraconstitutional court in the form of a Federal Constitutional Court could be superimposed upon the Supreme Court and whether the proposed amendments were person-specific, tainted with mala fide and shrouded in complete secrecy which was in sheer violation of the procedure of passing an Act of Parliament as provided in Constitution.

They submitted that the proposed bill put forth proposed amendments to the Constitution that would transfer the vested powers of the Supreme Court of Pakistan and the High Courts of Pakistan, as granted by the Constitution, to the executive and entirely annihilate the principles of independence of the judiciary and separation of powers.

The proposed bill includes over 40 amendments to the Constitution, including the introduction of a Federal Constitutional Court, an amendment to inter alia Article 175A, the transfer of powers from the Supreme Court and High Courts of Pakistan to the executive and a supraconstitutional Federal Court, as well as amendments to Articles 17 and 63-A of the Constitution, regarding the disqualification of members of parliament on grounds of defection.

It is also worth highlighting that the proposed bill is sought to be introduced at a time when the parliament is not properly constituted as the order of this honourable court in the case of Sunni Ittehad Council is not being implemented and rightfully elected members of the National Assembly are being deprived of their representation. Moreover, members of the National Assembly have been illegally abducted and attempts have been made to coerce the members of the National Assembly into changing their loyalties. It is evident that an attempt has been made to bypass and subvert the procedure and rules of the National Assembly

That it is a settled law under the constitutional jurisprudence of Pakistan that independence of judiciary constitutes a basic and salient feature of the Constitution. Therefore, even the parliament cannot amend the Constitution so as to undo its salient features and render a pillar or organ of the state weak.

That the selection process of Judges should be free from any political bias or interference whereas Section 13 of the proposed amendment has introduced a mechanism for appointment of the judges of the High Courts and the Federal Shariat Court which is in complete violation of the independence of the judiciary and separation of powers.

The inclusion of members of the Senate and the National Assembly in the commission for appointment of judges is against the principle of separation of powers, as the members of the executive and the legislative branch should not have any involvement in the process of appointment of judges, as the same would taint the entire process of judicial appointments with political bias save as provided in the unamended Article 175A of the Constitution.

That the amendments introduced in the process of judicial appointments are person-specific and therefore in violation of the fundamental rights enshrined under the Constitution. That such politically motivated legislation which is in sheer violation of the basic structure of the Constitution is entirely unprecedented in the Constitutional history of Pakistan, whereas such draconian and unconstitutional laws were not passed even during periods of martial law in this country.

That the creation of a Federal Constitutional Court through Section 14a of the proposed amendment is against the very basic/salient feature of the Constitution and makes the Supreme Court of Pakistan, the Apex Court of this country, entirely subservient to a purported supraconstitutional court.

Moreover, the sacrosanct office of the Chief Justice of Pakistan has also been made subservient to the office of the Chief Justice of the Federal Constitutional Court. That the creation of an entirely separate Federal Constitutional Court which is to run parallel to an already existing Supreme Court will only lead to a complete paralysis of the judicial system.