Sound byte: Allowing judges to determine salient features of Constitution would curtail parliament’s power

Source: Published in Justice on Tuesday, February 24, 2015

The Supreme Court resumes hearings on the challenges to the 21st Amendment case today (Tuesday). Last month, the Supreme Court admitted petitions by the Lahore High Court Bar Association (LHCBA) and others against the formation of military courts under the 21st Constitutional Amendment.

Some of the petitioners argued that setting up of military courts establishes a parallel judicial system that goes against the salient features of the Constitution, which guarantees the right to a fair trial.

Dawn spoke to Asma Jahangir, former President Supreme Court Bar Association on SCBA’s perspective on the amendment, which is different from the LHCBA petition.

The latter has challenged the amendment on the grounds that the Constitution has a basic structure, which has been affected by the 21 Amendment. This argument is not part of the SCBA petition.

Q: Why is SCBA’s perspective on the challenge to the amendment different from the LHCBA’s?

A: A question arises of whether the Supreme Court should have the power to strike down a constitutional amendment, as is being requested by the LHCBA through its petition when the parliament has supremacy over the apex court. The court can strike down a law but not an amendment to the Constitution. However, the Supreme Court judges have the power to interpret an amendment, which is what the SCBA is expecting them to do and what we have also asked the court through our petition.

Q: Can the judiciary determine the salient features or basic structure of a Constitution or is it only the parliament’s purview?

A: When we discuss, in court, the basic structure or salient features of the Constitution, we give appointed judges the power to determine the nature of future constitutions. This is not the job of the courts. It becomes especially problematic, when the Constitution has been amended several times by dictators. For example, Is the Federal Shariat Court introduced by the military regime of Ziaul Haq in 1980 and subsequently protected through the eighth amendment part of the basic structure or not? Similarly, is the clause introduced by Gen Pervez Musharraf making graduation degree a prerequisite for candidates contesting the general elections, in a country where most people are not graduates, also part of the basic structure? If the answer is yes, then the Constitution requires radical changes.

Q: If the Supreme Court rules that only the judiciary can determine the basic structure of the Constitution then what would be the impact?

A: The power and authority of the parliament would be drastically curtailed. There would be a challenge to every constitutional amendment passed by the parliament in future. I understand that in countries such as India and Bangladesh, the judiciary has passed rulings regarding certain salient features of constitutions but this has also drawn a lot of criticism.

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