The government has unveiled its proposal to revise the articles 62 and 63 of the Constitution which the Supreme Court invoked when its five-judge bench disqualified former Prime Minister Nawaz Sharif in the July 28th Panamagate case verdict.
The plan was announced on Tuesday during a National Assembly session where Justice Minister Zahid Hamid laid out the government’s intentions.
Legal experts, however, are of the opinion that an increasingly powerful judiciary may strike down any constitutional amendment as declared in the Supreme Court’s verdict in the 21st Constitutional Amendment case.
In the 21st Constitutional Amendment case of 2015, eight judges out of the 13-member bench adjudicated that the Parliament, in view of articles 238 and 239, is vested with the power to amend the Constitution as long as the essence of the Constitution is not undermined, rescinded or substantively altered.
Legal experts say that new constitutional amendment regarding any matter can be reviewed by the apex court in view of the 2015 judgment.
The Court had declared that democracy, parliamentary form of government and independence of the judiciary are the salient features of the Constitution. “This court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining salient features.”
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“It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the salient features of the Constitution has been repealed, abrogated or substantively altered as a consequence,” notes the verdict endorsed by eight judges.
Legal experts say that new constitutional amendment regarding any matter can be reviewed by the apex court in view of the 2015 judgment.
However, former Supreme Court Bar Association (SCBA) President Kamran Murtaza said if parliament plans to amend Article 62 (1) (f) in order to set a time duration for disqualification of an MP, the court will not review the amendment since it will not compromise the essence of the Constitution. “The SC is also examining whether the disqualification under Article 62 (1) (f) extends for life or for five years,” he added.
Senior lawyers believe that the Supreme Court has accrued significant influence and power after its July 28 judgment, which has also sparked a debate on apex court rulings that supposedly undermined the supremacy of Parliament.
After the restoration of the judiciary – led by former chief justice of Pakistan Iftikhar Chaudhry – in March 2009, the Supreme Court has passed several judgments which, some perceive, have reduced the powers of Parliament.
In the past, the court has rejected the Contempt of Court Act, 2012 as well as the National Assembly speaker’s ruling in former PM Yousaf Raza Gilani’s contempt case.
Others blame parliamentarians themselves for weakening Parliament as they have consistently failed to resolve issues within the house. Political parties have been continually approaching the judiciary against each other and judgments in such cases have severely dented parliament’s authority.
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Legal experts believe that the SC’s July 28 verdict has resulted in stricter measures and scrutiny regarding the asset details of parliamentarians. Now any parliamentarian can be disqualified on the basis of concealment of assets anytime by the apex court under Article 184 (3).
The Parliamentary Committee on Judges Appointment was formed in 2010 under the 18th Amendment. But the Supreme Court, in its 2012 Munir Bhatti case verdict, had limited the powers of the committee by stating that its decisions could be reviewed by superior courts.
In view of that order, the committee became ineffective as several of its decisions were overturned by high courts. Committee members subsequently decided not to get involved in the process of judicial appointment and did not hold any meetings for a year.
In the past, the court has rejected the Contempt of Court Act, 2012 as well as the National Assembly speaker’s ruling in former PM Yousaf Raza Gilani’s contempt case.
The court, in its detailed judgment in the speaker’s ruling case of 2012 had held that in the Pakistani context, the old-fashioned British concept of parliamentary sovereignty was no longer relevant.
It also stated in the Contempt of Court Act judgment that the act (law) was a colorable legislation, as it was beyond the legislative competence of Parliament, and, accordingly, unconstitutional and void.
The Supreme Court and the Parliament have been passively engaged in a struggle for power which has bubbled beneath the surface, mostly hidden from the public’s attention.
In 2010, due to the top court’s proceedings under Article 184 (3) of the Constitution in the fake degree and dual nationality cases, several lawmakers were disqualified.
Similarly, the top court did not send its registrar before the Public Accounts Committee for an audit of the apex court’s accounts.
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The Supreme Court office also refused to provide information to the Senate related to the query about the dual nationalities of judges. Former law minister Farooq H Naek had informed the house that the Supreme Court had repeated its earlier reply that neither the Constitution nor the code of conduct prescribed for judges prevented a dual national from becoming a judge of the superior courts.
The Supreme Court and the Parliament have been passively engaged in a struggle for power which has bubbled beneath the surface, mostly hidden from the public’s attention. However recent days may see an escalation of hostilities due to the Panamagate verdict and the resentment it has accrued in the Parliament.