Government has plans to amend the articles 62 and 63 of the constitution. These are the same articles invoked by the apex court when Nawaz Sharif was disqualified as Prime Minister.
Legal experts, however, believe that an increasingly powerful judiciary may strike down any constitutional amendment as declared in the Supreme Court’s verdict in the 21st Constitutional Amendment case.
In the 21st Constitutional Amendment case, on Aug 5, 2015, eight judges out of the 13-member bench held that parliament, in view of articles 238 and 239, is vested with the power to amend the Constitution as long as the salient features of the Constitution are not repealed, abrogated or substantively altered.
They had declared that democracy, parliamentary form of government and independence of judiciary are the salient features of the Constitution. “This court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining salient features.
“It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the salient features of the Constitution has been repealed, abrogated or substantively altered as a consequence,” notes the verdict endorsed by eight judges.
Legal experts say that new constitutional amendment regarding any matter can be reviewed by the apex court in view of the judgment.
However, former Supreme Court Bar Association (SCBA) president Kamran Murtaza said if parliament amends Article 62 (1) (f) to set a time duration for disqualification of an MP, the court will not review the amendment as it will not affect the salient features of the Constitution. “The SC is also examining whether the disqualification under Article 62 (1) (f) extends for life or for five years,” he added.
Senior lawyers believe that the Supreme Court has become a more powerful institution after its July 28 judgment, which has also sparked a debate on apex court rulings that undermined the supremacy of parliament.
After the restoration of the judiciary – led by former chief justice of Pakistan Iftikhar Chaudhry – in March 2009, the Supreme Court has passed several judgments which have reduced the powers of parliament.
Some, however, blame parliamentarians themselves for weakening parliament as they have failed to resolve issues within the house. Political parties have been continually approaching the judiciary against each other and judgments in such cases have severely dented parliament’s authority.
Legal experts believe that the SC’s July 28 verdict will also tighten scrutiny regarding the asset details of parliamentarians and now any parliamentarian can be disqualified on the basis of concealment of assets anytime by the apex court under Article 184 (3).
The Parliamentary Committee on Judges Appointment was formed in 2010 under the 18th Amendment. But the Supreme Court, in its 2012 Munir Bhatti case verdict, had curtailed the powers of the committee by pronouncing that its decisions could be reviewed by superior courts.
Later, in view of that order, the committee became ineffective as several of its decisions were overturned by high courts as well. Committee members eventually decided not to get involved in the process of judicial appointment and did not hold any meetings for a year.
In the past, the court has rejected the Contempt of Court Act, 2012 as well as the National Assembly speaker’s ruling in former PM Yousaf Raza Gilani’s contempt case.
The court, in its detailed judgment in the speaker’s ruling case had held that in the Pakistani context, the old-fashioned British concept of parliamentary sovereignty was no longer relevant.
It also said in the Contempt of Court Act judgment that the act (law) was a colourable legislation, as it was beyond the legislative competence of parliament, and, accordingly, unconstitutional and void.
In 2010, due to the top court’s proceedings under Article 184 (3) of the constitution in the fake degree and dual nationality cases, several lawmakers were disqualified.
Similarly, the top court did not send its registrar before the Public Accounts Committee for an audit of the apex court’s accounts.
The Supreme Court office also refused to provide information to the Senate related to the query about the dual nationalities of judges. Former law minister Farooq H Naek had informed the house that the Supreme Court had repeated its earlier reply that neither the Constitution nor the code of conduct prescribed for judges prevented a dual national from becoming a judge of the superior courts.
Credit: Express Tribune