A recent episode of Pakistani television talk show Merey Mutabiq included a disturbing conversation with Qazi Anwar, President of Pakistan’s Supreme Court Bar Association, in which several troubling assertions were made including that the parliament does not have the power to amend the constitution, and that the Supreme Court has the privilege of striking down any part of the constitution of which it disapproves. The proliferation of such statements and actions by justices and advocates of the Supreme Court are deeply troubling, and pose a potential threat to the stability of Pakistan’s emerging democracy.
Supreme Court advocates have begun filing challenges to the recently ratified 18thAmendmentwhich repealed anti-democratic measures adopted under dictatorial rule in the 1980s and 1990s.
Advocate Mohammad Ikram Chaudhry filed the petition on Monday on behalf of the President of the Rawalpindi District Bar Association, Malik Waheed Anjum. It described the amendment as an intervention in the independence of judiciary that militates against the concept of the basic feature of the Constitution on appointment of judges.
The first such petition filed by Advocate Nadeem Ahmed said the process of induction of superior court judges through Article 175-A was impractical and it would not serve the purpose of appointing competent, honest and self-respecting lawyers as judges.
President of Supreme Court Bar Association Qazi Mohammad Anwar has announced that he would also challenge the amendment after it was signed by President Zardari.
Popular Pakistani bloggers have begun asking why it is that elements within the judiciary are only now challenging the constitution, given that they tolerated for decades anti-democratic measures adopted under military dictatorships.
Despite the actions of some elements within the judiciary, it by no means represents a consensus within the legal community. Former President of Pakistan’s Supreme Court Bar Association, Aitzaz Ahsan spoke with Pakistan’s Geo News yesterday and affirmed that the ability to amend the constitution lies solely with the parliament, and that the judiciary is overstepping its constitutionally defined authority by challenging the recently ratified 18th Amendment.
The former SCBA president said the apex court may at maximum propose an amendment, as it is up to the court to give suggestions, but it cannot on its own, rise to amend the Constitution.
Ahsan said, according to the Article-238, 239 no amendment in the Constitution can be challenged in any court, whatsoever; neither can the SC’s power to hear petition be challenged.
It was 2005 Lawyers Forum case verdict, where the court ruled that the SC cannot overrule the Constitutional amendment, Ahsan said adding the LFO was challenged in the case.
In fact, Pakistan’s constitution is quite clear about where the authority for amending the defining document lies. Sections 5 and 6 of Article 239 of Pakistan’s constitutionread,
(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever.
(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.
As Pakistan’s constitution is quite clear on where the authority for constitutional amendment lies, statements by the historially ill-tempered Chief Justice of Pakistan’s Supreme Court, Iftikhar Chaudhry, that contradict the plain language of the nation’s constitution are deeply troubling.
Analysts have feared for some time that the Supreme Court’s actions threaten both the legitimacy of Pakistan’s judiciary and the stability of the democratic government.
Some Pakistanis are now accusing Chief Justice Iftikhar Chaudhry, who was the hero of Pakistani democrats when he was reinstated a year ago after a protest movement led by lawyers, of pursuing a vendetta against Zardari and trespassing on presidential turf.
“There should be accountability of the executive, but since they (the judiciary) appear to be one-sided, the whole issue of accountability gets diluted,” said Asma Jahangir, the head of the Human Rights Commission of Pakistan, an independent organization. “These are symptoms of political anarchy. The judiciary is destroying itself.”
Pakistan’s Constitution speaks for itself. The recently ratified 18th Amendment is a strong step forward in Pakistan’s move toward democratization, and concerns by members of the judiciary can be addressed through the process defined in the constitution. While Pakistan suffers daily attacks from radical terrorists, it would be shocking if the democratic government was ultimately destabilized by misguided elements within the nation’s judiciary and legal community.