Pakistan: Statement on Constitutional Petition on the 18th Amendment

Statement Issued by the Civil Society Representatives at a Joint Press Conference on Constitutional Petition on the 18th Amendment

Venue: The Lahore Press Club
Date: July 10, 2010

Dear Journalists
Thank you very much for sparing some time to attend our press conference. We wish to talk about the constitutional petition filed by various civil society organizations and activists in their individual capacity in the Supreme Court of Pakistan (SCP) on Wednesday, July 8, 2010 to become interveners in the petitions against the recently passed 18th Amendment of Constitution. The Petition has been filed by senior lawyer Salman Akram Raja in favour of the 18th Amendment with an attempt to place a broad‐based civil society perspective before the apex court.

Prominent petitioners include Senator Mir Hasil Bizenjo, President Workers’ Party Pakistan Abid Hasan Minto, Shirkat Ghah Women’s Resource Centre’s Khawar Mumtaz, Senior columnist Kamran Shafi, Principal, St. Mary’s Academy, Rawalpindi Cecil Chaudhry, President Pakistan Peace Coalition Dr. Abdul Hameed Nayyar, Syed Mukhtar Bacha, Muhammad Osama Siddique, the All Pakistan Trade Unions Federation (APTUF), the Omar Asghar Khan Foundation, the Pakistan Institute of Labour Education and Research (PILER), the Simorgh Women’s Resource and Publication Centre, the Pakistan Fisherfolk Forum, the Sungi Development Foundation, the Institute for Social Movements (ISM), the South Asia Partnership (Pakistan), the Awami Party, the Labour Party Pakistan, and the We Journalists.

All these individuals and institutions have a long history of struggle for the rule of law, democracy and the independence of judiciary. They consider the sovereignty of the parliament as well as judicial independence and rule of law are equally important for democracy and progress and prosperity of the country. We firmly believe that for unhindered independence of judiciary a democratic process for appointment of judges in the superior courts is essential. Such a process should be transparent and with oversight of public representatives. We consider the inclusion of Article 175A of the Constitution as an attempt by the Parliament to put in place a process that is transparent and aimed at generating broad‐based agreement between various stakeholders with respect to appointment of the superior judiciary.

In fact, the role of the Parliamentary Committee is subsidiary to that of the Judicial Commission in so far as the Parliamentary Committee may only disapprove a name forwarded by the Judicial Commission with a super majority of six out of eight drawn from across the various political divides in the Parliament. The fact that the Parliamentary Committee may not suggest any names of its own ensures that no person may be appointed to the superior judiciary of the country without enjoying the support of the Judicial Commission.

Consequently, only those persons will be elevated to the Bench whose professional competence and character have passed the test of scrutiny by the Judicial Commission and were not unacceptable to an overwhelming majority of the members of the Parliamentary Committee. The petitions challenging various aspects of the Eighteenth Amendment to the 1973 Constitution are all based on the premise that the Supreme Court possesses the jurisdiction to declare void procedural amendments to the Constitution on the grounds of violation of the Basic Structure or the Basic Features of the Constitution. In our view, this is a theory of substantive rather than procedural review of the constitutional amendments and remains the single most controversial theory of constitutional law globally.

We believe that an elected Parliament represents the will of people. And that the Parliament and no other institution has the competence to frame laws and effect amendments to the Constitution in the broader interest of the people. We have submitted that recourse to the Objectives Resolution of 1949 for finding support for the principle of independence of the judiciary is unnecessary. In our view, the Objective Resolution is controversial political document. The independence of the judiciary was a venerated principle in Pakistan’s
constitutionalism long before the Objectives Resolution was made a substantive part of the Constitution by the dictator who had chosen to redraw the ‘ideological frontiers’ of this nation and had appointed himself the guardian of his self‐conceived ideological domain. Several judgments of the superior courts of the country provide rousing testimony to this fact.

We condemn the letter by the National Accountability Bureau (NAB) to the Chief Justice of Pakistan saying that the restoration of the Chief Justice and other judges through an executive order had been unconstitutional. We believe that judges were neither removed nor restored and all the orders regarding removal of judges including the proclamation of emergency by the dictator General Musharraf were actually illegal. The Supreme Court had already issued verdicts declaring the removal of judges and state of emergency as illegal. We are of the view that the NAB letter at this time has been issued to subvert the
constitutional reforms process. We demand that the government should take stern action against all responsible officials of NAB for writing the letter to the Supreme Court.

We strongly condemn the resolution adopted by the Punjab Assembly accusing the media for unfounded wrong doings. We think it is highly deplorable and would like to remind our legislatures that they are there in the assemblies because of the struggle and sacrifices made by the media for democracy and freedom of expression in Pakistan. The media in Pakistan has always stood against dictatorship and the role of media needs to be appreciated. We very strongly condemn the Punjab Government in patronizing anti media campaign. We think it is a conspiracy against the democratic set up in the country, and the people who are responsible for such a campaign against media must be exposed and punished. We, the members of civil society of Pakistan, show our solidarity with the media and warn the Punjab Government or such powers that we will not allow them to defame media and undermine the important role of media in instituting strong democratic dispensation in Pakistan. Our petition is scheduled to be heard by the Supreme Court on Monday, July 12, 2010.

1. Neelam Hussain, Simorgh Women’s Resource and Publication Centre
2. Mohammad Tahseen, South Asia Partnership Pakistan
3. Khawar Mumtaz, Shirkat Gah Women’s Resource Centre
4. Farooq Tariq, Spokesperson, Labour Party Pakistan

Copy of the write petition.

More information: Farooq Tariq
Spokesperson, Labour Party Pakistan
40-Abbot Road Lahore, Pakistan
Tel: 92 42 6315162 Fax: 92 42 6271149 Mobile: 92 300 8411945