Leader of Lawyer’s Movement Says Court Cannot Overturn Constitution

Some elements have continued to fire attacks on Pakistan’s democracy in apparent attempts to execute a ‘Coup by Judiciary.’ Despite these recent attacks, Dawn reports today that leader of the Lawyer’s Movement that helped put CJ Iftikhar back on the bench, Barrister Aitzaz Ahsan, has said that parliament has the sole authority to amend the constitution and that the Court must obey the constitution and not try to overturn it.

Explaining, Barrister Ahsan said, the 18th Amendment had been unanimously adopted by all the major political parties and even though parties opposing some provisions voted in favour of the amendment by adding dissenting notes.

If the 17 judges of the Supreme Court strike down the amendment adopted by the representatives of the 170 million people, it would naturally be seen as judiciary pitted against the legislatures, Barrister Ahsan feared. He said upsetting the amendment would spark convening of meetings by parliament to nullify the effects of any judicial verdict.

“I can cite at least 15 judgments of the Pakistan’s Supreme Court as well as similar number from the Indian jurisdiction to establish that constitutional amendments cannot be struck down by the courts,” he said.

Barrister Ahsan quoted the Pakistan Lawyers Forum (PLF) case in which amendments inserted in the constitution through the legal framework order were dismissed by the Supreme Court bench of which Justice Iftikhar Mohammad Chaudhry was also a member only because the amendments were subsequently validated by the parliament through the 17th constitutional amendment.

Referring to the Zafar Ali Shah case, Barrister Ahsan recalled that the Supreme Court had prescribed limits not to touch the basic feature of the constitution because it was granting the right of amending the constitution on an emergency basis to a single person who was a dictator then.

Articles 238 and 249 of the constitution also take away the right of the judiciary to strike down any constitutional amendment, he said, adding what the apex court could do on the petitions challenging the 18th Amendment was to suggest certain improvements after interpretation but not modifying it by itself.

Nevertheless, attacks on the constitution continued from some elements within the legal community suggesting that the judiciary could operate outside the definition of its authority in the constitution and overrule any other part of the government including the people’s elected representatives in parliament, essentially becoming a dictator by judiciary.