By Sohail Khan
ISLAMABAD: The federal government on Thursday filed its reply in the Supreme Court to the petitions challenging certain sections of the 18th Amendment and contended that under Article 239 of the Constitution, amendments made to the Constitution by parliament cannot be challenged in the court.
In its reply, filed through Masood Chishti advocate, the government contended that the petitions against the 18th Amendment were not maintainable, as the petitioners had no locus standi (not competent) to file the case. Replying to the Lahore High Court Bar Association’s petition, the federation adopted the stance that under Article 239 of the Constitution, parliament’s constitutional amendment cannot be challenged before the court.
The government requested the apex court to dismiss the LHCBA’s petition with fine. “The Constitution does not provide any jurisdiction to invalidate the constitutional amendment, made in accordance with the prescribed procedure; therefore, the petition under reply is not maintainable,” the reply said. It said that powers of parliament cannot be restricted on the basis of any ideology and maxim.
It said that there is no limitation, whatever, on the power of parliament to amend any of the provisions of the Constitution, thus the petitions are liable to be dismissed. It said the power of parliament cannot be curtailed or fettered on the basis of any doctrine, maxim or theory.
The reply says that parliament has to exercise its power in accordance with the written command of the Constitution and the recent amendments have been validly adopted by parliament. It says that the establishment of the judicial commission, under the 18th Amendment, will not undermine the independence of the judiciary. “The inclusion of the attorney general and the law minister in the judicial commission will not affect the appointment of judges in the superior courts,” it added.
Defending the judicial commission, the government, in its reply, said that various countries in the world have a system of appointment of judges by the parliamentary committee, and nowhere this authority has been considered as adversely affecting the independence of judiciary.
“In Pakistan, the amendment, pertaining to the appointments of superior courts’ judges, has been made, in view of the past experience of the history as this was a desired objective and almost all political parties contested preceding election with the manifesto of bringing amendments, particularly for the appointment of superior judiciary, the government’s reply said.
It said the involvement of the parliamentary committee in the process of appointment of judges of the superior courts does not have any negative impact on the independence of the judiciary.
Around 15 petitions have been filed in the apex court against the 18th Amendment. Some of the petitioners included Nadeem Ahmed advocate, the Rawalpindi District Bar Association, the Watan Party, the Supreme Court Bar Association, Muhammad Ejazul Haq and others, making the Federation as respondent. Overall, the petitioners have challenged the judicial commission for the appointment of superior courts’ judges provided in the 18th Amendment and called for immediate annulment of Article 175-A by terming it a law against the freedom of the judiciary.
They argued that the appointment of judges is linked to the independence of the judiciary, thus judicial appointments cannot be made through the judicial commission having political involvement.They stated that the formation of the judicial commission under the 18th Amendment was against the basic structure of the Constitution and independence of the judiciary.
Source: The News
Date:5/28/2010
