Parliament can’t undo constitutional rights through amendment: SC

ISLAMABAD: The Supreme Court (SC) on Thursday remarked that parliament could not withdraw or abolish the fundamental rights enshrined in the Constitution through any amendment.
A 17-member full bench of the Supreme Court (SC), presided over by Chief Justice (CJ) Nasirul Mulk, took up the petitions filed against the 18th and 21st amendments for hearing on Thursday.
Justice Asif Saeed Khan Khosa remarked that the rights given to minorities in Pakistan had not been given even to Muslims. The minorities could not only field their candidates on general seats in polls but also their representatives reached parliament through reserved seats.
Iftikhar Gillani, advocate, while arguing said that that all other matters including minorities were political and only people could decide about them. This decision should be left to the people. No one could be elected to parliament in the presence of rich people who had come to parliament by spending billions of rupees.
Hashmat Habib, counsel for Shamshad Ahmad Mangat, appeared in the court and said that 175-A be reviewed. There were reservations about the Judicial Commission (JC) and other matters. He asked if the 18th Amendment fell in the ambit of an amendment. The entire 18th Amendment was inappropriate and wondered if the Article 175-A was not opposed to independence of judiciary.
Justice Asif Khosa asked if the independence of the judiciary was included in the basic features of the Constitution.Hashmat Habib said that a mention had been made about the basic structure in the preface of 18th Amendment. Everything was laid down in the Objectives Resolution that elected representatives would use democracy as power endowed by Almighty Allah.
He said that all the articles had been amended in the 18th Amendment. This was a change of Constitution and the 18th Amendment was a fraud with the people.The CJ remarked, “You cannot talk for repealing the entire 18th Amendment. Talk about those articles which affect.”
Hashmat Habib said that the name of Khyber Pakhtunkhwa was given to a province despite the fact that the name of province could be changed only through a referendum. The British rulers had named the province NWFP and parliament was not authorised to change it.
Justice Sarmad Jalal Usmani wondered if it had affected the basic contours of the Constitution.Hashmat Habib asked if they would allow them to change the name of Pakistan, if they wanted to in future. Justice Sarmad Jalal Usmani said that he was saying an improper thing.
Justice Jawwad S Khawaja remarked, “The representatives of the minorities have not come through their own people but they have been nominated directly. These representatives don’t enjoy popular support.”
Justice Jawwad S Khawaja observed “A person who is the most popular leader of the minorities community and enjoys support of his people is not appointed a minorities member. Does the one who owes to the party also owes to the people?”Justice Asif Saeed Khosa said what the Constitution said would have to be complied with. “How an overseas Pakistan holding dual nationality could contest the election.”
Iftikhar Gillani said that seven judges had given a decision that anything which was in conflict with the fundamental rights could be nullified. The powers for making constitutional amendments were not unconstitutional. It had been made clear with reference to emergency in Pakistan and India that no ultra constitutional step could be taken.
Justice Ejaz Afzal said that as far as fundamental rights were concerned, the Constitution only gave guarantee for them. He asked how these rights could be withdrawn through a constitutional amendment. “Constitution had not given rights but it had provided only protection.”
Justice Jawwad S Khawaja said that the supremacy of parliament was the opinion of the Britons. Parliament was the House of Lords and the minorities had no right to elect their representatives.The hearing of the case was adjourned till Monday.