Constitutional amendments can’t be challenged: Pakistan government

ISLAMABAD - The confrontation between the Pakistani government and the Supreme Court seems to be deepening with the former now contending that constitutional amendments are not open to judicial review.

The government and the Supreme Court are already on a collision course over implementing the latter’s order to reopen graft cases against President Asif Ali Zardari and some 250 others who had benefited from the National Reconciliation Ordinance (NRO), an amnesty against graft that the court has declared unconstitutional.

On Thursday, the government took the stand in the Supreme Court that a provision in the 18th constitutional amendment creating a commission for making appointments in the higher judiciary cannot be challenged.

The response came on a petition by the Lahore High Court Bar Association contending that the appointment of the commission would impact on the independence of the judiciary.

“In its reply, filed through advocate Masood Chishti, the government contended that the petitions against the 18th amendment were not maintainable as the petitioners had no locus standi to file the case,” The News reported Friday.

“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 newspaper added.

Urging the Supreme Court to dismiss the petition with a fine, the government said: “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.”

It also said that parliament’s powers cannot be restricted on the basis of ideology or maxims.

It said that there was no limitation whatsoever on parliament’s power 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.

This apart, 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”, the government maintained.

It also pointed out that various countries in the world have a system of appointing judges by a parliamentary committee “and nowhere has this authority been considered as adversely affecting the independence of judiciary”.

“In Pakistan, the amendment pertaining to the appointment of superior courts’ judges has been made in view of the past experience of history as this was a desired objective and almost all political parties contested (the 2008 general) election with the manifesto of bringing amendments, particularly for the appointment of the superior judiciary”, the government contended.

Petitions against the judicial commission have also been filed by the the Supreme Court Bar Association and the Rawalpindi District Bar Association.

The Supreme Court had declared the NRO unconstitutional in December 2009 and ordered the reopening of all cases that had been closed under it.

Since then, the government has been ambivalent on the $60 million Swiss money laundering case against Zardari, not saying in as many words whether or not it would be reopened.

On Tuesday, the government sought, and received, three weeks’ time to formulate its reply.

Former president Pervez Musharraf had promulgated the NRO in October 2007 primarily to enable former prime minister Benazir Bhutto and her husband, Zardari, to return home.

Bhutto was killed in a gun and bomb attack Dec 27, 2007 as she left a political rally in the adjacent garrison town of Rawalpindi.

The 18th amendment had also overturned the 17th amendment that Musharraf had rammed through parliament in 2003 transferring key executive powers from the prime minister’s office to the judiciary.

These included the power to dissolve the National Assembly, the lower house of parliament, and to appoint the service chiefs.

This measure has been widely welcomed in Pakistan.