Jawwad S Khawaja warns of ‘constitutional breakdown’, urges SC to act or risk ‘death of judiciary’
ISLAMABAD:
Former Chief Justice of Pakistan Jawwad S Khawaja has challenged the proposed 27th constitutional amendment in 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 pushes the amendment through parliament, with alarm bells ringing across the legal community, now waiting for the top court to act before judicial independence is irrevocably eroded.
In a petition filed through his lawyer, Khawaja Ahmed Hosain, the former CJ warned that the constitutional tweaks were diminishing the hard-won consensus of the 1973 constitution.
He warned that a precedent was being set “which will haunt the nation and its citizen,” adding that a nation whose founding document “is fundamentally controversial and contentious cannot flourish.”
“Where faith wanes in constitutions, the social contract that holds the nation, its state, and its 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. Failure to act 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,” the petition reads.
The former CJP asked the SC to suspend, pending a final decision on his plea, any constitutional provision curtailing or abrogating the court’s constitutional jurisdiction or transferring those powers to any other court or body.
Meanwhile, lawyers have expressed surprise that despite letters from sitting judges, retired judges and prominent members of the legal fraternity, CJ Yahya Afridi is yet to convene a full bench to discuss the crisis facing the judiciary.
Former Additional Attorney General Tariq Mahmood Khokhar observed that the petition of a former CJP raises compelling grounds.
“Two sitting SC judges, including the senior puisne judge, have written letters against the injustice of the 27th Amendment. And yet the CJP remains unmoved; the Constitutional Council remains unmoved. Before long, the 27th Amendment will be passed, albeit by a legislature that lacks legitimacy.”
A full hearing and urgent hearing of the former CJP’s petition is warranted, he stressed.
“Unprecedented in the annals of democratic history, the CJP, to paraphrase Sir Winston Churchill, has become the CJP to preside over the liquidation of the Supreme Court of Pakistan.”
He noted that the Constitutional Court was empowered by the disqualification of the Supreme Court of Pakistan, which effectively caused the destruction of the constitution, judiciary and democracy.
“Our constitutional order teeters on the brink of an abyss. It faces existential threats from a Dictatorship with the support and cooperation of unrepresentative executive and legislative branches and also members of captured institutions.”
“The extra constitutional champions, with the support of the fifth columnist from within, have succeeded where Ayub Khan, Yahya Khan and Musharraf had failed,” he added.
He further states that ironically, in their quest to impotent a few dissenting brother judges, the majority has 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 asked that the SC declare that Parliament has no power to amend the Constitution in a manner that reduces or abrogates the court’s constitutional jurisdiction.
He also requested the apex court to remove the provisions of the 27th Amendment regarding the transfer of Supreme Court judges.
The petition described the proposed amendment as “so patently unconstitutional on its face that it is shocking that Parliamentarians who have all taken an oath to preserve, protect and defend the Constitution have not outright repudiated the same”.
It said an amendment removing the SC’s constitutional powers “effectively abolishes the SCP as a constitutional court” and is therefore “clearly inconsistent 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 obliged to act now when an imminent and irremediable threat to its own existence arises. Article 175(3) of the Constitution mandates the separation of the judiciary from the executive. Every Judge in the SCP has taken an oath to ‘preserve, protect and defend’ the Constitution173 which amends the Constitution. to abolish the SCP’s constitutional jurisdiction is a 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 replace it with another forum manned by persons appointed by the executive, it gives them the power to change the rules of the game as and when they see fit. This is inconsistent with the separation of powers and judicial independence.”
