Supremacy Of The Supreme Court

Supremacy Of The Supreme Court

The government has revealed its plan to amend Articles 62 and 63 of the Constitution – invoked by the Supreme Court to disqualify the former Prime Minister in the Panamagate verdict.

However, legal experts believe that an increasingly powerful judiciary may strike down any constitutional amendments as declared in the 21st Constitutional Amendment Case by the Supreme Court.

In the 21st Constitutional Amendment Case, eight (8) judges out of the thirteen (13) member bench held that the Parliament, under Articles 238 and 239 of the Constitution, has been vested with the power to amend the Constitution so far as the principal features of the Constitution are not repealed, revoked or substantially altered.

It was declared that democracy, parliamentary form of government and the independence of the judiciary are the main features of the Constitution. Moreover, the Supreme Court is vested with the jurisdiction to interpret the Constitution to ascertain and identify its defining features.

The eight (8) judge verdict also noted that the Supreme Court is equally vested with the jurisdiction to examine the vires of any constitutional amendment in order to determine whether any of the salient features of the Constitution has been repealed, revoked or altered as a consequence.

Therefore the Supreme Court can review the new constitutional amendments in view of this judgment.

However, the former President of the Supreme Court Bar Association noted that if the Parliament amends Article 62(1)(f) to set a time duration for disqualification of a Member of Parliament, the Court would not review the amendment, as this would not be affecting the salient features of the Constitution.

Senior lawyers believe that the Supreme Court has become an even more powerful institution after its Panamagate judgment, which has also sparked a debate on the Court’s rulings that undermined the supremacy of Parliament.

After the restoration of the judiciary, the Supreme Court has passed several judgments, which have effectively reduced the powers of the Parliament.

Although some blame the parliamentarians themselves for weakening the Parliament as they themselves have failed to resolve issues within the House. As the Political parties have continuously approached the judiciary on matters that can be dealt with in the House, judicial judgments on which have severely dented the Parliament’s authority.

Experts believe that the Supreme Court’s Panamagate verdict will tighten scrutiny regarding asset details of Parliamentarians allowing the disqualification of any Parliamentarian on the basis of concealment of assets by the Supreme Court under Article 184(3).

The Parliamentary Committee on the Appointment of Judges was formed in 2010 under the 18th Amendment. But the Supreme Court, in the Munir Bhatti case verdict, has curtailed the powers of this Committee by enunciating that the decisions could be reviewed by superior courts.

In view of that order, the Committee became ineffective as the higher courts overruled many of its decisions. The Committee members eventually decided against being involved in the process of judicial appointments, thus they did not schedule a meeting for over a year.

Previously the Supreme Court has rejected the Contempt of Court Act 2012, as well as the ruling by the Speaker of the National Assembly in the former Prime Minister Yousaf Raza Gilani’s contempt case.

The Court, in its detailed judgment on the Speaker’s ruling case, held that the British concept of ‘Parliamentary Sovereignty’ is not relevant in the Pakistani context. Moreover, according to the Court, in the Contempt of Court Act judgment, the Act was a colourable legislation, as it went beyond the legislative competence of the Parliament, being unconstitutional and therefore void.

Furthermore, the Supreme Court has refused to provide information to the Senate related to the query about the dual nationalities of judges. The former Law Minister has 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.

Hence, it is evident from the precedent set by the Supreme Court that it holds the authority and jurisdiction to overrule any amendments by the Parliament and therefore the Government of Pakistan. Even though, this is strictly in light of the salient provisions of the Constitution. This clarifies the notion that amendments to Article 62 and 63 that do not alter, revoke or repeal the nature of the Constitution may be deemed effective.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Zealaf Shahzad

Author: Zealaf Shahzad

The writer is a student of BSc Management with Law at University College Lahore and is an intern at CourtingTheLaw. She has also worked as an intern at Curtis, Mallet-Prevost, Colt & Mosle LLP in Muscat, Oman and has represented Pakistan at the 9th Saray International Spring and Cultural Festival held in Turkey.