‘Is inconsistency with Constitution reason enough to strike down laws?’Archive
ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Tuesday wondered if inconsistency of any law with a provision of the Constitution could become cause for its annulment.
The CJP made the remarks while hearing petitions filed by PTI Chairman Imran Khan against the amendments made to the National Accountability Ordinance (NAO) in August 2022.
The three-member bench comprising the CJP, Justice Syed Mansoor Ali Shah and Justice Ijazul Ahsan also questioned if the amendments violated the salient features of the Constitution.
In his petition, Mr Khan argued that the amendments violated the right to life which was a salient feature of the Constitution. He argued that amendments would affect good governance which in turn affects the right to life.
CJP-led bench asks NAB to submit case record from 2019 to 2022
The courts have already held that the independence of the judiciary, parliamentary form of governance and Islamic provisions were the salient features of the Constitution, the CJP said.
Senior counsel Makhdoom Ali Khan, who was defending the amendments on behalf of the federal government argued that the jurisprudence of salient features was a question which still was open-ended to be determined in future.
The CJP observed that the matter of jurisprudence should be left for the future, but recalled how apex court had upheld the salient features of the Constitution in the past.The counsel contended that the courts always identify the provisions of the Constitution perceived to be violated by a statute, determine how they were violated and then try to reconcile them, instead of striking down the law entirely.
However, the counsel argued that these salient features, as well as the Constitution itself, were suspended thrice during martial laws.
Referring to the sanctity attributed to the salient features of the Constitution, Justice Syed Mansoor Ali Shah on Tuesday wondered if the court could rule against the aspirations of people if tomorrow they decide to make Pakistan a secular state.
The CJP recalled when the court had upheld the 21st constitutional amendment to set up military courts to try hardcore terrorists, it kept the authority of reviewing any sentence awarded by the military courts if the condition of a fair trial was not met.
The federal government’s counsel argued that courts derive inferential judicial powers, meaning that when any institution oversteps its authority, the judiciary acts to demarcate that boundary.
The counsel also reminded the court to summon the details of registered cases from 2019-2023 from the National Accountability Bureau.
Subsequently, the chief justice asked NAB to submit a report on this question.
Published in Dawn, February 8th, 2023