Experts say govt should await SC verdict on 21st Amendment

ISLAMABAD: Hamid Khan, top PTI leader and counsel for Lahore High Court Bar Association (LHCBA) in the petition against 21st Amendment in the Constitution, says now that the Supreme Court has admitted the petition for regular hearing and has sought the point of view of the Federation, it would be inappropriate if military courts are allowed to start functioning before the final decision of the apex court is announced.
President LHCBA Shafqat Chohan said that no lawyer would appear in courts set up as consequence of the 21st amendment. Hamid Khan and Shafqat Chohan were speaking to The News In Courtroom No-1. “The apex court has admitted petition seeking striking down of a constitutional amendment and has asked the federation, all the four provinces as well as federal capital territory to submit replies. This morally binds the federal government to keep 21st amendment dysfunctional till the final decision of the supreme court is announced and if the federal government made it functional it will be a wrong message and quite inappropriate,” said Hamid Khan.
During his preliminary arguments before a three-member bench headed by SC Chief Justice, lawyer Hamid Khan mostly relied on clauses 1 and 2 of Article 8 of the Constitution under which any law inconsistent with the basic human rights as guaranteed in the Constitution will be void. He explained that he will argue in detail in the light with different judgments of the apex court that Parliament’s powers to amend the Constitution under Article 239 could not be extended to compromise basic human rights. He referred to Article 2A as well.
Hamid Khan maintained that Parliament has undermined the basic human rights, independence of judiciary, principle of separation of powers between executive and judiciary while amending the constitution. First Schedule of Constitution, which gives a list of laws independent from the force of articles 8(1) & 8(2) and undermines powers of the judiciary, has been amended after 39 years in a negative way. He maintained that adding any laws in Part-1 of First Schedule of constitution allowing any executive authority to function as ‘judiciary’ and that too by completely curtailing all judicial powers the country’s superior judiciary is unconstitutional and against the spirit of constitution and basic principle of separation of powers.
Article 8 of the constitution reads: Laws inconsistent with or in derogation of Fundamental Rights to be void - 8. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The Provisions of this Article shall not apply to:
(a) Any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) Any of the (i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) Other laws specified in Part I of the First Schedule; and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in Part II of the First Schedule into conformity with the rights conferred by this Chapter :
Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
Explanation: If in respect of any law Parliament is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.
(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.
Part-1 of First Schedule of constitution contains following laws at present after questionable 21st amendment to the constitution;
FIRST SCHEDULE {Article 8(3) (b) and (4)}
Laws exempted from the operation of Article 8 (1) and (2)
PART I
I. President’s Orders- 1. The Acceding State (Property) Order, 1961 2. The Economic Reforms Order, 1972
II. Regulations- 1. The Land Reforms Regulation, 1972 2. The Land Reforms (Baluchistan Pat Feeder Canal) Regulation, 1972 3. The Economic Reforms (Protection of Industries) Regulation, 1972 4. The Distribution of Property (Chitral) Regulation, 1974 (II of 1974) 5. The Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 6. The Dir and Swat (Devolution and Distribution of Property and Settlement of Disputes of Immovable Property) (Amendment) Regulation, 1975 7. The Settlement of Disputes of Immovable Property (Chitral) (Amendment) Regulation, 1976
III. Federal Acts
1. The Land Reforms (Amendment) Act, 1974,
2.
3. The Land Reforms (Amendment) Act, 1975, 3. The Flour Milling Control and Development Act, 1976
4.
5. The Rice Milling Control and Development Act, 1976 5. The Cotton Ginning Control and Development Act, 1976 (LIX of 1976).
6. The Pakistan Army Act, 1952 (XXXIX of 1952)
7. The Pakistan Air Force Act, 1953 (VI of 1953)
8. The Pakistan Navy Ordinance, 1961 (XXXV of 1961)
9. The protection of Pakistan Act, 2014 (X of 2014)}
IV. Ordinance Promulgated by the President - The Land Reforms (Amendment) Ordinance, 1975 and the Federal Act enacted to replace the said Ordinance.
V. Provincial Acts-
1. The Land Reforms (Baluchistan Amendment) Act, 1974
2.
3. The Land Reforms (Pat Feeder Canal Regulation) (Amendment) Act, 1975
VI. Provincial Ordinance- The Land Reforms (Pat Feeder Canal) (Amendment) Ordinance, 1976.