Presidential reference: Supreme Court may exercise advisory jurisdiction in response: CJ

Chief Justice of Pakistan Justice Nasirul Mulk has observed during the haring of petitions against the 18th and 21st Constitutional Amendment on Wednesday that the Supreme Court may exercise its advisory jurisdiction in response to a presidential reference over a matter. Senior Advocate Abdul Hafeez Pirzada, who has challenged the 18th Amendment, concluded arguments before a 17-judge full court led by Chief Justice Nasirul Mulk, saying that the apex court has power to intervene if the state is in danger.
A member of the bench Justice Asif Saeed Khosa said that the very oath taken by a judge emphasises protection and strengthening of the Constitution of Pakistan. Responding to a query of the bench, Pirzada said that it is the responsibility of every citizen to protect the state, contending that even though the apex court cannot directly remove a prime minister it is a powerful institution.
Justice Mian Saqib Nisar observed that the court can direct a referendum on any issue to which Pirzada replied that apex court has advisory jurisdiction; Chief Justice Nasirul Mulk categorically said that the apex court does not exercise its advisory jurisdiction in its own capacity but gives its opinion in response to a presidential reference over an issue.
Opposing the 21st Constitutional Amendment on behalf of various bar associations, senior advocate Hamid Khan argued that the Amendment effected a number of constitutional provisions including Article 2-a, 8(1)(2), 9,10, 25, 100, 175 (3), 184 (3), 185,190,199 and Article 245, first and fourth schedule of the Constitution; and contended that these Articles were effected directly because of the establishment of military courts in the country.
"21st Constitutional Amendment seriously disturbs, undermines and perverts the scheme and structure of Constitution particularly in five areas which disturbs the basic structure of the Constitution of Pakistan," Hamid Khan pleaded. Khan focused on five areas including tracheotomy of power in the Constitution, separation of the judiciary from the executive, independence of judiciary as an organ of the State, access to justice as a fundamental right and fair trial, due process guaranteed to every citizen of Pakistan.
Hamid Khan said that military or special court is not a new concept in Pakistan and noted that military courts were established on 8 October 1958, 25 March 1969, and a mini martial law in April 1977 (courts established in three cities - Lahore, Karachi and Islamabad) which was challenged on 31 May 1977.
Terming the mini martial law of 1977 'repressive' Hamid Khan said, "Most repressive period in the history of Pakistan lasted for eight and half years when a large number of political workers, journalists and other activists suffered in jail". Khan informed the bench that military courts were established in Pakistan during 1998 under the title of Pakistan Armed Forces Acting in Aid to Civil Power through promulgation of an Ordinance on 20 November 1998.