ISLAMABAD: The attorney general for Pakistan submitted the core question before the apex court is whether there is a limit to the power of the Parliament to amend the Constitution.
A three-judge bench, headed by Chief Justice Umar Ata Bandial, on Wednesday, heard the petitions to declare the 25th Constitutional Amendment ultra vires of the Constitution.
Justice Bandial said a larger bench will be constituted to hear petitions against the 25th Constitutional Amendment Act, 2018 to merge the Federally Administered Tribal Area (FATA) in the Khyber-Pakhtunkhwa (KP).
He said that the democracy is the salient feature of the Constitution, while the Fundamental Rights of the citizens are the part of the Constitution.
AGP Khalid Jawed Khan contended that it was important to determine the extent to which the Parliament can amend the Constitution.
“If the integration of an area impedes the rights of its residents, then the question of federal units may arise,” the AGP said. The chief justice asked if the integration of the erstwhile tribal areas affected the representation of the area residents in the Provincial and National Assemblies; to which the AGP replied that the biggest issue after the 25th Amendment was that of FATA representatives in the respective assemblies.
“Representatives of FATA supported the 25th Amendment,” the AGP said.
Advocate General KP Shumail Butt submitted a concise statement.
According to it the Supreme Court in Rawalpindi District Bar case authorised the review of the constitutional amendments on the basis that there are implied substantive limits on Parliament’s power to amend the Constitution.
It said the endorsing a doctrine (of salient feature) and actually using it to invalidate constitutional amendment are not the same.
The doctrine was not part of the constitutional law in Pakistan; hence, it could not be used to strike down a “Constitutional Amendment”.
The 25th Amendment did not abridge, rather preserved the salient features, which include democracy, Federalism, Parliamentary Form of Government blended with the Islamic provisions, by granting the population of the FATA access to justice under the full spectrum of the laws of Pakistan.
The AG KP submitted that the doctrine of basic structure of the constitution was recognized (in Pakistan) only to the extent of identifying salient or fundamental features of the constitution. The said doctrine; therefore, could not be made a ground to strike down any amendment of the constitution. He submitted that the post constitutional amendment, the people of FATA took part in the General Election 2018 to election candidates for the National and Provincial Assembly for the seats to newly-merged districts of erstwhile FATA. The people of erstwhile further welcomed the 25th constitutional amendment by vigorously participating in the Local Government Elections, 2021.
Shumail Butt stated that after the 25th Amendment all the residents of the KP are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of rest of KP, and thus the application of the FATA Interim Regulation to one part of the KP, while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in contravention of the fundamental right to equal protection.
Copyright Business Recorder, 2022