ISLAMABAD: A constitutional lawyer argued before the Supreme Court on Monday that the 18th Amendment had weakened provinces’ autonomy and that the court had the power to strike down any amendment after a “judicious review”.

“The power of this court to judiciously review or strike down the amendments, subject to certain conditions, including that violation of the basic structure or conscience of the Constitution remain totally intact and unfettered,” said Abdul Hafeez Pirzada who has challenged several aspects of the latest changes to the 1973 Constitution.

He had participated in framing the Constitution which has lost much of its originality through frequent and sometimes unilateral amendments

Assisted by Barrister Miangul Hassan Aurengzeb, Mr Pirzada alleged that the 18th Amendment had reversed the process of provincial autonomy through which eight items of the concurrent list, including the all important subject of electricity, had been included in the federal legislative list.

By retaining the electricity sector, the amendment has taken away the legislative and executive powers of the federating units, he said.

Citing Article 157 of the Constitution, the counsel argued that after the amendment the provincial governments could not levy tax on electricity or build power houses though they would be providing raw material for power generation in the shape of oil, gas or coal.

He said such a situation would lead to a serious consequence in future, thus the amendment was the bad swing of the pendulum and destructive of the federal climate of the Constitution.

The Constitution should be workable, but in the present shape the situation is not a good omen for the future of democracy, he said, adding that the solution lay in the empowerment of the people and not individuals.

The 1973 Constitution has a conscious and a basic structure and if this structure is violated by parliament through an amendment, the theory of the constitutional conscience or the basic structure shall enjoin upon this court to strike down the 18th Amendment, he said.

Mr Pirzada insisted that the amendment had violated features of the Constitution that collectively formed the basic structure and the cherished concept of independence of the judiciary had been undermined.

The amendment is not an amendment but a fresh legislation, he argued.

He said Article 175-A that had introduced a new concept for the appointment of superior court judges was a wholly bad law.

Referring to the omission of the intra-party elections and amendments to Article 63 and election of women on proportionate representative system, the counsel argued that an individual sitting outside parliament had been empowered to recall or disenfranchise a member.

That individual also enjoys unfettered and an undefined power to bring 25 per cent of the total members of parliament through nominations and not elections.

This, he said, would seriously impair parliamentary democracy which was an inalienable part of the basic structure. He said those parts of the amendment were also destructive of the collective as well as the entire fundamental rights of the nation.

He argued that Article 175-A had brought in an alien system that had destroyed the original system of appointment of superior court judges that would bring institutional deterioration as a system of voting had been brought in for the appointment of judges.

In a separate case, meanwhile, Justice Khalilur Rehman Ramday observed that despite pressing family issues being faced by members of the bench the hearing on the 18th Amendment was progressing smoothly.

The judge cited the examples of Justice Saqib Nisar whose wife had to undergo a heart procedure, Justice Shahid Siddiqui who had fainted because his haemoglobin level dipped to a dangerous level and Justice Ghulam Rabbani whose son was facing a serious health issue.

Courtesy by dawn.com