ISLAMABAD: Chief Justice of Pakistan Mian Saqib Nisar on Thursday asked a senior parliamentarian point blank about his opinion on the Supreme Court’s authority to strike down a law if made incompetently by parliament or a provincial assembly.
“Does the Supreme Court have the authority to declare ultra vires any law if made incompetently by parliament or if it impinges upon or breach the fundamental rights as guaranteed under the Constitution or if it is in conflict or expressly militates against a particular provision of the Constitution,” the chief justice asked senior counsel Farooq H. Naek.
“Please answer in a loud and clear manner because you are not only a senior lawyer but also a seasoned parliamentarian who has also served as chairman of the Senate,” the chief justice said.
Mr Naek said the third category under which the chief justice had asked about striking down a law because it militated against the particular provision of the Constitution came under the grey area.
Counsel argues that court has no authority to read into Constitution
A three-judge SC bench, headed by the chief justice, was hearing a Sindh government’s petition challenging the Sept 7 Sindh High Court verdict that had restrained the provincial government from removing or transferring Inspector General Allah Dino Khowaja.
Legal observers were of the view that the observation made by the chief justice was a reaction to open criticism of the Supreme Court’s recent judgement barring ousted prime minister Nawaz Sharif from heading the ruling Pakistan Muslim League-Nawaz.
What would survive if the court, while interpreting a law, found out that the subordinate legislation was in conflict with the provisions of the Constitution, the chief justice observed, adding that this was a simple question not like algebra, but people did not understand things.
“We acknowledge the supremacy of parliament everyday,” the chief justice reiterated. He asked how many laws the Supreme Court had struck down so far and then went on to answer by stating that only a few.
Unfortunately, when people discussed issues, they did not understand the niceties of laws and they undoubtedly spoke as a layman, he said, adding that their interpretation was different from the one that came from the experts of law.
Farooq Naek argued that the court could not read into or add into the Constitution unless an amendment was made by parliament.
Instead of destroying the law, “we can read down the law,” the chief justice observed.
“But I will still humbly say that the court has no authority to read into the Constitution,” the counsel argued and cited a Supreme Court judgement authored by former chief justice Mian Ajmal.
He argued that after the 18th Constitution Amendment, the police service had been delegated to the domain of the province and, therefore, SHC’s interference in the posting of the IG was a clear violation of the amendment. Restraining the provincial government from passing laws or orders was against the sanctity of parliament, he argued.
At this, the chief justice observed that in case the counsel insisted on this point, the court would have to hear all the provinces otherwise its judgement would prejudice their rights. He said he might have to constitute a larger bench so that judges from other three provinces could also be part of the bench to hear and settle the matter.
The court then issued a notice to the attorney general and adjourned the hearing to March 7.
The same bench was informed that so far only 204 of the 30,000 federal government officers of grade-17 and above had volunteered by accepting that they were dual nationals.
Establishment Secretary Maroof Afzal told the bench hearing a suo motu case about dual nationality that only 13 officers from four occupational groups — Pakistan Administrative Services (PSA) or DMG, Police Services Pakistan (PSP), Office Management Group (OMG) and Secretariat Group — were dual nationals.
But the chief justice disputed the figures and observed that accepting dual nationality might not entail any punishment, but concealing facts from the apex court was a serious crime.
The court asked the civil officers to volunteer within 10 days that they were dual nationals for which no adverse action would be taken. After 10 days, it said, the window of opportunity would be closed and the concealment would be taken as disregard and disobedience to the Supreme Court orders and appropriate action would be taken.
“If someone conceal, then we have the mechanism by asking Nadra to track down,” the chief justice said.
The court directed the foreign affairs secretary as well as secretaries of the services concerned of the four provinces to appear before it at the next hearing.
During the proceedings, the court asked about the travel history of fugitive senior Karachi police officer Rao Anwar who was wanted in connection with the murder of Naqeebullah Mehsud.
But the court was told that information about it was not handy as many people went outside the country on iqama.
Published in Dawn, March 2nd, 2018