ISLAMABAD: Former chief justice of Pakistan Justice (retd) Saeeduzzaman Siddiqui has said that the Supreme Court (SC) can strike down the 21st Constitutional Amendment. He argued that in the 1996 landmark Al-Jehad Trust Case — commonly known as the Judges Case — the apex court had already struck down an article of the Constitution on the precise question of the independence of the judiciary. Justice Siddiqui rejected the impression that there was no precedent in the history of Pakistani judiciary where any constitutional article had been struck down by the apex court. He added that the setting up military courts during Nawaz Sharif’s second term was also undone by the Supreme Court in Mehram Ali’s case as such courts were found a parallel judicial system which, according to the SC order, could not be permitted to be established in Pakistan. Justice Siddiqui also referred to the case challenging the 18th Amendment in the Supreme Court with regard to the judges’ appointment procedure as was introduced by parliament through a Constitutional Amendment in 2010. However, the apex court had reservations about the said procedure following which it had sought certain changes which were duly made by parliament through a constitutional amendment. The said case, Siddiqui said, was still pending before the apex court. Referring to the Al-Jehad Trust Case of 1996, Justice (retd) Siddiqui said that before this particular case, the president was empowered to appoint a sitting chief justice of a high court or a judge of the Federal Shariat Court under Article 203C of the Constitution without his consent. But the Supreme Court, in 1996 in the Al-Jehad Trust Case, struck down the said article of the Constitution finding it in friction with the independence of the judiciary as guaranteed by the Constitution. In the said case, the SC had declared the Article 203-C as being a violation of Article 209, which guaranteed the tenure of office. The SC judgment said, “Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the framers of the Constitution, the same shall prevail and, hence, such an appointment will be void.” Following the Supreme Court’s 1996 judgment, the Article 203-C of the Constitution became redundant and was never applied again because of the apex court’s decision.The said Article was giving the executive the authority to appoint any judge or chief justice of any high court as judge in the Federal Shariat Court. According to the redundant constitutional article, if any such high court judge does not accept the appointment as a judge of FSC, he shall be deemed to have retired from his office. The SC had found that the appointment of a sitting chief justice of a high court or a judge thereof in the Federal Shariat Court under Article 203C of the Constitution without his consent is violative of Article 209 of the Constitution of Pakistan, which guarantees the tenure of office. It added that Article 203C of the Constitution having been incorporated by the chief martial law administrator and Article 209 of the Constitution having been enacted by the framers of the Constitution and also being beneficial and promoting the independence of the judiciary, in case of conflict between the two, Article 209 of the Constitution shall prevail over Article 203C which detracts from dominant intent and spirit of the Constitution, namely the independence of the judiciary and such an appointment will be void.
