Jawwad S Khawaja warns of ‘constitutional collapse’, 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 is pushing the amendment bill through parliament, with alarm bells ringing across the judicial community, which now hopes the apex court will act before judicial independence is irreparably eroded.
In a petition filed through his lawyer, Khawaja Ahmed Hosain, the former justice warned that the constitutional adjustments diminished the hard-won consensus on the 1973 Constitution.
He warned that a precedent was being set “that will haunt the nation and its citizens,” adding that a nation whose founding document “is fundamentally controversial and contested cannot prosper.”
“When faith in constitutions declines, 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 overturn it. Failure to act is an abdication of its responsibility and constitutional duty. If this Court cannot protect itself, there is no hope for ordinary citizens seeking fulfillment of their fundamental rights.”
“At its core, this petition is about the rule of law. Do we, as a nation, want to be governed by laws or by men?” the petition reads.
The former CJP asked the SC to suspend, until a final decision on his plea, any provision of the Constitution that reduces or abrogates the constitutional jurisdiction of the court or transfers 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 call a full court meeting to discuss the crisis facing the judiciary.
Former Additional Solicitor General Tariq Mahmood Khokhar pointed out that the petition by a former CJP raises compelling grounds.
“Two sitting judges of the SC, including the chief justice of puisne, have written letters against the iniquity of the 27th Amendment. And yet, the CJP remains unmoved; the Constitutional Court remains unmoved. Soon, the 27th Amendment will be enacted, albeit by a legislature that lacks legitimacy.”
A full meeting of the court and an urgent hearing on 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 to preside over the liquidation of the Supreme Court of Pakistan.”
He observed that the loss of power of the Supreme Court of Pakistan was strengthening the constitutional court, which was effectively leading to the ruin of the foundations of the constitution, judiciary and democracy.
“Our constitutional order is teetering on the brink of an abyss. It faces existential threats from a Diktat, with the support and collaboration of a non-representative executive and legislature and also members of captured institutions.”
“The extra-constitutionalists, with the support of the internal fifth columnists, have succeeded where Ayub Khan, Yahya Khan and Musharraf had failed,” he added.
He further states that, ironically, in their eagerness to inflict impotence on a few dissident 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 for the SC to declare that Parliament has no authority to amend the Constitution in a manner that reduces or abolishes the court’s constitutional jurisdiction.
He also asked the high court to repeal provisions of the 27th Amendment related to transfer of high court judges.
The petition described the proposed amendment as “so patently unconstitutional on its face that it is shocking that parliamentarians sworn to preserve, protect and defend the Constitution have not rejected it out of hand.”
He said an amendment abolishing the constitutional powers of the SC “effectively abolishes the SCP as a constitutional court” and is therefore “clearly incompatible with the Constitution.”
“The Constitution does not require that the judiciary wait helplessly for its own destruction,” the petition continues.
“The SCP, as the guardian of the Constitution, has a duty to act now when an imminent and irreparable threat to its very existence arises. Article 175(3) of the Constitution mandates the separation of the judiciary from the executive. Every judge in the SCP has sworn to ‘preserve, protect and defend’ the 1973 Constitution. Remaining silent on an amendment that seeks to abolish the constitutional jurisdiction of the SCP is an abdication of constitutional duty.”
“The death of the Supreme Court will be the death of an independent judiciary,” he warned.
“If the proposal is accepted that the Legislature and the Executive can at any time abolish the highest court in the country and replace it with another forum run by individuals appointed by the Executive, it empowers them to change the rules of the game when they consider it appropriate. This is incompatible with the separation of powers and judicial independence.”
