Jawwad S Khawaja warns of ‘constitutional collapse’, urges SC to act or risk ‘death of the judiciary’
ISLAMABAD:
Former chief justice of Pakistan Jawwad S Khawaja has challenged the proposed 27th Constitutional Amendment before the Supreme Court, warning that it would weaken the state, upset the balance of power and violate the doctrine of separation of powers.
The petition comes as the government is pushing the amendment bill through parliament, with alarm bells ringing across the judicial community, now looking to the apex court to act before judicial independence is eroded irretrievably.
In a petition filed through his counsel, Khawaja Ahmed Hosain, the ex-CJ warned that the constitutional tweaks diminished the consensus that was achieved with such difficulty regarding the 1973 Constitution.
He cautioned that a precedent was being set “which will haunt the nation and its citizen,” adding that a nation whose foundational document “is fundamentally controversial and contested cannot prosper”.
“Where faith diminishes in constitutions, the social contract holding the nation, its State and citizens together is undermined.”
“Those who do not learn from history are doomed to repeat it. This Court has the power and duty to stop the 27th Amendment and strike it down. If it fails to act, it is an abdication of responsibility and constitutional duty. If this Court cannot protect itself, there is no hope for ordinary citizens seeking enforcement of their fundamental rights.”
“At its heart, this Petition is about the Rule of Law. Do we as a nation want to be governed by Laws or Men,” reads the petition.
The former CJP requested the SC to suspend, until a final decision on his plea, any provisions of the Constitution that curtail or abolish the court’s constitutional jurisdiction or transfer those powers to any other court or body.
Meanwhile, lawyers have expressed surprise that despite letters from sitting judges, retired justices and prominent members of the legal fraternity, CJ Yahya Afridi has not yet convened a full court meeting to discuss the crisis confronting the judiciary.
Former additional attorney general Tariq Mahmood Khokhar noted that the petition by a former CJP raises cogent grounds.
“Two sitting SC judges, including the senior puisne judge, have written letters against the iniquity of the 27th Amendment. And yet the CJP remains unmoved; the Constitutional Bench remains unmoved. Shortly, the 27th Amendment will be enacted, albeit by a legislature lacking legitimacy.”
A full court meeting and an urgent hearing of the former CJP’s petition are warranted, he stressed.
“Uniquely, in the annals of democratic history, the CJP, to paraphrase Sir Winston Churchill, has become the CJP in order to preside over the liquidation of the Supreme Court of Pakistan.”
He noted that the constitutional court was being empowered by the disempowerment of the Supreme Court of Pakistan, effectively causing the ruination of the fundamentals of the constitution, judiciary and democracy.
“Our constitutional order is teetering on the brink of an abyss. It is facing existential threats from a Diktat, with the support and collaboration of unrepresentative executive and legislature and, members of captured institutions as well.”
“The extra constitutionalists, with the support of the fifth columnists from within, have succeeded where Ayub Khan, Yahya Khan and Musharraf had failed,” he added.
He further states that, ironically, in their quest to inflict impotence on a few dissenting brother judges, the majority have rendered their own institution impotent, all in exchange for meaningless titles and appointments. “A classic case of comic tragedy,” he added.
In his petition, Justice Khawaja pleaded that the SC declare that parliament has no authority to amend the Constitution in a manner that reduces or abolishes the court’s constitutional jurisdiction.
He also requested the top court to strike down provisions of the 27th Amendment relating to the transfer of high court judges.
The petition described the proposed amendment as “so patently unconstitutional on the face of it that it is shocking that parliamentarians who have all sworn an oath to preserve, protect and defend the Constitution have not rejected the same outright”.
It said that an amendment abolishing the SC’s constitutional powers “effectively abolishes the SCP as a constitutional court” and is therefore “clearly incompatible with the Constitution”.
“The constitution does not require the judiciary to wait helplessly for its own destruction,” the petition continued.
“The SCP, as the guardian of the Constitution, is dutybound to act now when an imminent and irreparable threat arises to its own existence. Article 175(3) of the Constitution commands the separation of the judiciary from the executive. Every Judge of the SCP has taken an oath to ‘preserve, protect and defend’ the 1973 Constitution. To remain silent over an amendment that seeks to abolish the SCP’s constitutional jurisdiction is an abdication of constitutional duty.”
“The death of the Supreme Court will be the death of an independent judiciary,” it warned.
“If the proposition is accepted that the Legislature and the Executive can at any time abolish the highest court of the land and substitute it with another forum manned by individuals nominated by the Executive, it empowers them to change the rules of the game as and when they deem fit. This is incompatible with the separation of powers and judicial independence.”
