King’s party formed after grouping in political parties: SC

ISLAMABAD: The Supreme Court (SC) on Wednesday observed that Article 163 of the Constitution had a background as the king’s party was formed by creating groups in the political parties. A 17-member SC full bench presided over by Chief Justice(CJ) Nasirul Mulk took up for hearing petitions filed against 18th and 21st constitutional amendments here Wednesday.
During hearing, Justice Asif Saeed Khan Khosa remarked that the judiciary having no jurisdiction against decisions of Parliament would be dangerous.He further observed that exercising powers by judiciary in the name of national security was doctrine of necessity. SC was entitled to defend the Constitution only when it was attacked. To what extent they could go to safeguard the Constitution as the matters were not clear on this count. “If responsibility for protection of the state rests with us, are we not responsible for protecting the power of Parliament. India has recently made amendment to form Judicial Commission in connection with appointment of judges on our pattern which has been challenged,” he said.
He remarked, “Constitution has been made by the people and now we say to them you have not shown maturity while making the Constitution.”Justice Mian Saqib Nisar said that the Constitution had struck balance in the powers. They were answerable to some one despite they had full powers. If Constitution faced threat or state was under threat, the court could endorse or nullify the constitutional amendments by using this threat as weapon. “We cannot declare constitutional amendment null and void. Is in other words, doctrine of necessity is alive in this state,” he said.
Hafiz Pirzada said, “SC is custodian of Constitution and it can exercise its powers in consonance with the Constitution.”
Hamid Khan advocate said that setting up military courts was not a new thing in the country. But SC had already declared them illegal and unconstitutional. This article was alien to articles 2-A, 8,25, 19,175, 10-A and others.
Pirzada said, “In our country fair and transparent elections could never be held. This is our tradition and history that judiciary has to make interference when country faces threats to its national security.”
Justice Asif remarked “Is it doctrine of necessity.”
Hafiz Pirzada said “No, this is constitutional power which you used. If state faces threats, judiciary can interfere therein.”
CJ remarked, “Tell us if we have only this power or we have some other powers too.”
Pirzada said “You cannot remove the government directly. Referendums held in this country are suspicious.”
Justice Mian Saqib Nisar inquired if the court could hold referendum directly on any matter or not.”
Pirzada said “It has been allowed in the decisions of judiciary but you have only advisory powers.”
Pirzada said, “Article 186 is there with you. If you don’t try to save the country, it is your constitutional failure. You had given wake up call on Karachi situation. This is your judicial power.”
Justice Asif remarked, “Does any provision exist under which action can be taken against unconstitutional steps except article 199. Can we declare any matter unconstitutional? Can we defend the constitution? How can we defend the constitution? If someone attacks, we will defend it.”
Pirzada said, “You have said in the oath that you will defend and safeguard the Constitution.”
Justice Asif remarked if the things were so, they would have to protect every important pillar of this country. It became their responsibility to protect the powers of Parliament for making amendment.
Justice Mian Saqib Nisar remarked, “Can the threat facing the state become means for nullifying the constitutional amendment. If the state faces a threat, can any constitutional amendment be made by using this threat as tool or any constitutional amendment be annulled keeping in view this threat.”
Pirzada said, “You have to protect the minorities as per Islamic teachings. Safeguarding the fundamental rights is your responsibility too.”
Justice Qazi Faiz Essa remarked, “Question is this that all the powers were delegated to party heads under article 63 A and they were powerful despite being not members of Parliament and were running the assembly while sitting outside it.
Justice Asif remarked, “These people gave us Constitution and now we say to these people that you are not mature therefore, we have to make decision.”
Pirzada said, “You cannot go back from your powers. You have to decide where you have to interfere or not interfere.”
Hamid Khan said both 18th and 21st amendments had affected the basic structure and dealt equal damage to it. Two amendments had been made. On one side amendment had been made in Army Act and on other side, this amendment had also been made that no court could proceed against them. National Action Plan was evolved after attack on Army Public School, Peshawar. Point No 2 of this plan was relevant which related to establishment of military courts. Military officers would head these courts and these courts would be set up for two years. Article 2-A which provided guarantee for independence of judiciary, had been affected directly. Clauses 1 and 11 of article 8 had been rendered ineffective fully. Attempt had been made to restrict the powers of superior judiciary. 21st amendment has affected constitutional structure.CJP remarked, “We will hear the case till 11 O clock on Thursday and later this full court would resume hearing on June, 16.