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‘Criminal negligence’ and the economical truth

It is sometimes frustrating and at other times disappointing that the honorable judges of supreme court of Pakistan know exactly what they are supposed to do, however either intentionally or unintentionally they don’t do the right things.

Yesterday at one point, CJ tried to be appreciative of the 18th amendment and the Parliament to correct an incorrect thing. However, I am sure he knew exactly how much he was economical in his truth and appreciation.

Let me discuss this in detail.

As we know that the only valid ground for the supreme court of Pakistan to strike down any amendment made by the parliament is “the violation of fundamental rights of people of Pakistan”.

The article 184(3) states that:

“(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.”

According to the article 20 of the constitution, it is the fundamental right of every citizen of Pakistan to “profess, practise and propagate” his religion. Therefore any amendment in the constitution that tries to restrict and/or violates this fundamental right then supreme court has the authority to review that amendment and suggest the possible remedies.

In 1985 , the mad dictator with a malicious intent of polarizing the religious hatred amongst the people of Pakistan, made the Objectives Resolution “substantive part” of constitution. The Objective Resolution by virtue of two of its articles provided the courts of Pakistan a tool for inciting religious frictions amongst the people. The Resolution was used by the mad dictator to implement his “Islamization” program of transforming the society of Pakistan into what we see today.

As I said yesterday “Objective Resolution” was just a guideline for the constitution framers (parliamentarians), and was in no way a constitutional framework.

Let me quote the two provisions from the Objective Resolution:

“Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah; “

However despite that the writers/approvers of Objective Resolution ensured that the minorities in Pakistan have the full freedom in practising and professing their religion. Therefore they added

“Wherein adequate provision shall be made for the minorities to freely profess and practice their religions and develop their cultures; “

Mad dictator deliberately removed the word “freely” from the “Objective Resolution”, this allowed him and the courts to use the “Islamic” provisions of the “Objective Resolution” and the “Constitution” to implement his sinister motives.

We know that “Parliamentarians” of 1985, made a “criminal negligence” in omitting the word “freely” from the constitution of Pakistan, as stated by CJ yesterday in his observation. However the point I want to make is , it was the “fittest” case for the supreme court of Pakistan to review a “constitutional amendment” on the basis of the article 184(3).

Should I submit with total humility that it was the “criminal mistake” on part of the majestic Supreme Court of Pakistan not to advise the parliament to include the omitted word.

Let me get back quickly to the arguments put forward by Mr. Hamid Khan yesterday.

1. Presidential System : Mr. Hamid Khan seemed to coming totally unprepared for this case. If he had done some research he would have found that form of the government has nothing to do with role of parliamentarians in the judicial appointments. I was reading this book The Composition of Constitutional Courts (Science and Technique of Democracy). He might want to read it too.

2. Indian Court review: All the counsels of petitioners love to give the example of Indian Supreme court reviewing the Constitutional amendments.

3. Salient Features of Constitution: Hamid Khan submitted that the salient features of the Constitution namely fundamental rights, parliamentary form of government, federalism, independence of judiciary and Islamic provisions could not be altered.
This is one of fallacious argument that Hamid Khan and likes love to make in order to mislead the court. First of all there is a big difference in “altering” and “violating” an article of constitution. All the provisions of constitution can be altered in a way that remove the ambiguity and/or improve it.

Secondly this arguments leads to the impression that an amendment in say “federalism” necessarily mean a “violation” which is wrong. I don’t want to get into debate of salient features of constitution however this argument should be thrown without any discussion as it has been exhaustively discussed in several of the supreme court cases.

Hamid Khan did not dare touching the question of fundamental rights violation by any of clause in 18th amendment, as he knew that 18th amendment actually improves the constitution in many ways in terms of guaranteeing the fundamental rights, as CJ accepted in his observation.

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  • Excellent analysis, peja. I agree that CJ is trying (what he is best at) to manage public relations through political correct statements, e.g., in support of minorities’ rights, while ‘taking care’ not take any substantive step in that direction.

    Your argument is very valid that the 18th amendment actually improves the constitutional provisions in terms of fundamental human rights, and in this sense strengthens not violates “the salient features” of the 1973 constitution.

  • Kamran Shaif’s critical comments on the current composition of the Supreme Court:

    I have to start with the drama fast unfolding in the honourable Supreme Court, and the reaction to it that one meets on the street and on the Internet.

    I wonder how conversant My Lords are with cyberspace, especially when one sees the utter abandon with which the Lahore High Court first ordered Facebook banned and a few days later restored.

    In the interim Pakistan was made to look like a foolish country with foolish people who did not have any idea about what was good for them and what was not.

    But surely, some of them will know what is going about on the Internet, particularly from bloggers from Sindh and Balochistan and Khyber Pakhtunkhwa about the ethnic makeup of the Supreme Court.

    I say what I am saying with extreme humility, and as a good friend and supporter, nay as a loyal servant of an independent judiciary. I merely point out what I do to caution My Lords that parallels are being drawn between the present court and the hanging bench that despatched another Sindhi, that time the brilliant Zulfikar Ali Bhutto via the hangman’s noose: the four Punjabis on the bench convicting and the three non-Punjabis acquitting.

    A noose that should never have been used according to Nasim Hassan Shah, one of the hanging judges, in several interviews he has given over the last five or so years.

    What is the parallel you might well ask? ZAB, an elected leader of great note within the country, and of world renown abroad on the one hand, and the much-maligned Asif Zardari on the other? But this is the whole point, is it not? When the smaller provinces feel badly done by — Bhutto’s judicial murder; Nawab Akbar Bugti’s cold-blooded and targeted killing; the disappearance of many Baloch and Sindhi activists — the seeming relentlessness of Asif Zardari’s pursuit does not enter the equation.

    This is what people in positions of authority in this poor and fraying federation must understand, and the sooner the better. Incidentally, the whole argument about ethnicity is just that: ethnicity and not the province in which someone or other resides or is domiciled.

    One more time might I suggest too, that in order to demonstrate that they are not only interested in the laying low of the federal government in particular, and politicians and parliament in general, that My Lords step back to give and take some respite, and call other weighty matters before them in suo motu actions as well? At the top of which very long list is the matter of the disappeared which is really attaining alarming proportions.

    Critically, it seems an absolute exercise in futility to have a retired judge heading a tribunal of inquiry on the disappeared when a bench of the Supreme Court itself cannot (will not?) summon an army officer above the rank of colonel before it.