law’ but according to my information, some judges were opposed to this idea and thus the apex court avoided passing judgment on the issue and this question of law was not answered by the Pakistani Supreme Court,” added Khalid Anwar.
“In my viewpoint, the principle of basic structure theory of the Constitution does not apply in Pakistan and the apex court using such principle will be detrimental to national interests,” Khalid Anwar opined.
The Supreme Court is subject to the Constitution but Constitution is not subject to the Supreme Court, said Khalid Anwar and added that under Article 175 of the Constitution, the Supreme Court’s jurisdiction is what is defined in the Constitution and is not beyond that or is not unlimited.
He said that it is out of the question that any citizen would challenge any Constitutional Article or Constitutional Amendment before the American Supreme Court.
Asked if parliament passes a constitutional amendment with two-thirds majority declaring that the senior-most army general would be the deputy prime minister, would the Supreme Court accept such an amendment, he said that it was a ridiculous question. “If parliament would give such powers to the army, it will be madness and will only mean that all parliamentarians have gone mad.” Khalid Anwar said adding “My point is if some 450 parliamentarians could do such a thing, it could also be expected from relatively lesser number of judges.”
Khalid said that in a democratic society, the final authority stays with the representatives of millions of people and say of the people is always final. “If we claim to be a democratic society, we will have to honour the judgment of the representatives of the people,” Khalid Anwar said.
Abid Hasan Minto was of the view that it is time for Pakistan’s apex judiciary to decide the question whether it will examine the constitutionality of any Constitutional Amendment on the basis of its concurrence with the overall scheme, totality and spirit of the Constitution. In the past, the apex court avoided doing so. Minto said if parliament amends the Constitution, giving powers to some institution like the army that its senior-most official will be the deputy prime minister, it will be completely against the basic spirit and the overall scheme of the Constitution and in any such situation the Supreme Court will have to lay down the principle to examine the concurrence of constitutional amendments with basic spirit of the basic book.
Justice Wajihuddin Ahmad told The News that on many occasions in the past, the apex court has elaborated and interpreted articles of the Constitution in such detail that original article became irrelevant. Wajih said that because of this, the superior judiciary could not only interpret any amendment to the Constitution in the light with the basic spirit of the Constitution but could also strike down any Constitutional Amendment if it found it in contradiction with the basic structure and basic principles of the Constitution.