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.