26th Constitutional Amendment Challenge...? - Mustafa Nawaz Khokhar raises important questions

2 weeks ago

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Transcript

00:00Mr. Mustafa, you are going to challenge this amendment, but technically the Sindh Assembly has given its approval.

00:06The bench has been formed.

00:08For now, all the seniors will do the same work until it is taken up again on 26th and 27th.

00:13And the IND bench has been formed in Vifak as well.

00:16So, how will it be heard now and how will it move forward?

00:20Because on the part of the court, there is its acceptance as well.

00:22It has not even been put in full court.

00:24So, I feel that this matter is done and dusted.

00:26In our opinion, it is not done and dusted.

00:28We will continue our efforts against the Christian Reformation.

00:31And the points on the basis of which we have gone to the Supreme Court,

00:36the first point is that the Constitutional Bench cannot hear this matter.

00:42Because it is a by-product of the 26th Constitutional Amendment.

00:45And because of being a by-product of it, it has a direct interest in it.

00:51So, we want that the full court should hear this case.

00:58When we were students in the first year of LLB,

01:04the first lesson we learned in Constitutional Law was about natural justice.

01:10And there are some basic requirements of justice in it.

01:13One of them is the Latin phrase that defines it,

01:17that a man cannot be a judge in his own cause.

01:22So, our first request would be that the full court should hear this,

01:26instead of the Constitutional Bench.

01:29And apart from that, we have also put this point in front of the Supreme Court,

01:33that this is in conflict with the basic principle of the Constitution.

01:36Our Constitution guarantees the freedom of justice.

01:40And through this constitutional amendment,

01:42the executive has gained control over justice.

01:46Not only has he gained control, but he has also enshrined it.

01:49And all these intentions are of a political nature,

01:53that why should justice be enshrined.

01:56Our Constitution guarantees the freedom of justice.

01:58Whereas Mr. Bhutto, whom you can call not only the Framer of the Constitution,

02:03but also the Father of the 73 Constitution,

02:06that when the Constitution of 1973 was being passed,

02:09he himself addressed this thing,

02:11and these are his words in his speech.

02:13What he did when the Constitution was being passed,

02:16and he said that we have not given unlimited powers to the Parliament in this Constitution.

02:22We have put restrictions on the powers of the Parliament.

02:25We have put restrictions on human rights.

02:28We have put restrictions on the freedom of justice.

02:31And this is the same thing in the future,

02:33there are several Supreme Court decisions,

02:35one of which is the case of Rawalpindi District Bar Association,

02:38in which 13 judges of the Supreme Court have said

02:41that there are three salient features of our Constitution,

02:44and the Parliament cannot touch those three salient features.

02:48One of which is federalism,

02:50the second is about the independence of judiciary,

02:54and the third is the parliamentary form of government.

03:00So the Supreme Court has already said these three features.

03:04And then our third point is,

03:06that the defects of Khyber Pakhtunkhwa in this legislation,

03:10the defects in the process,

03:12that the elections of the Senate were not held in Khyber Pakhtunkhwa,

03:16they were not held on the basis of elections.

03:20If the elections had been held in Khyber Pakhtunkhwa like other provinces 6 months ago,

03:25then today in the National Assembly and especially in the Senate,

03:3011 seats of Khyber Pakhtunkhwa would have been more.

03:33The law that has been passed, the 26th amendment,

03:37the 65th amendment was needed for two majorities.

03:40The government has passed this from the Senate on the basis of one vote.

03:44And then the way Sardar Akhtar Mengal is on record,

03:49the main petitioner is Fahmina Birza,

03:52the manner in which this was passed,

03:54the way her members were kidnapped,

03:58the Supreme Court has also asked for a judicial inquiry

04:02into whether these people voted independently or they were forced to vote.

04:07So you have two points.

04:08One is that you have a disagreement with the spirit of this and the way it was passed.

04:11The way it was passed.

04:13So both are on the front.

04:15Mr. Pasha, this is being criticized again and again,

04:20that there is a conflict of interest.

04:22When this amendment is being challenged,

04:25then wouldn't it be better if a clear decision is made on the issues of challenging it,

04:31after which the Ayni Bench is formed,

04:33after which the cases are sorted and put in front of the Ayni Bench.

04:37If this is a challenge now,

04:39then we are going in circles,

04:41until we make a fundamental decision,

04:44all the petitions of the 26th amendment,

04:46in which it has been challenged,

04:47in which the process has also been challenged,

04:49in which its basic concept has also been challenged,

04:51after that the benches are made,

04:53after that the Ayni Bench is formed.

04:57In the name of God, the Most Merciful, the Most Compassionate.

04:59I completely agree with Mr. Khokhar and agree with him.

05:06But there are some things that will have to be seen,

05:10that why did the current parliament need to interfere in these matters of justice.

05:19Some of the history of justice is not so golden,

05:24which we should appreciate.

05:26For example, the same court, which we call free,

05:29endorsed Zia-ul-Haq's martial law.

05:32The same court, which we call free,

05:35in the era of Zia-ul-Haq,

05:38Zulfar-Ali Bhutto was hanged.

05:40The same court, which we call free,

05:44gave Pres Musharraf the power for three years,

05:49that he can do it for three years.

05:51He can amend the law.

05:53Only one person can do it.

05:55The same court, which we call free,

05:58endorsed Pres Musharraf's martial law.

06:01In the same court, there are those who did not take an oath under the PCO.

06:06In the same court, there are those who did not take an oath under the LFO.

06:11In the same court, there were judges who agreed to be arrested,

06:17but did not give in to the order.

06:21So, these are the golden and black actions.

06:29But Pasha, whatever political reasons you are giving me,

06:33my question was very basic and technical.

06:35As a lawyer, do you think that these petitions should be heard first,

06:39their results should be revealed,

06:41and then the benches should be formed?

06:43I would like to say that there can be a difference in methodology,

06:47but there can be no difference in the power of the parliament.

06:51The parliament used its power,

06:54and it stepped in a little in the judiciary,

06:57just like the judiciary steps in the power of the parliament every day.

07:02So, I say that there has been an excess,

07:05there has been an excess in the powers of the judiciary to some extent,

07:09which is very important to balance.

07:11Now, let's come to this,

07:13the 26th amendment has been implemented,

07:18under which the Chief Justice took an oath,

07:22the committee under the Practice and Procedure Act was formed,

07:31now he has to decide how.

07:35I understand as a student of law,

07:39that if the amendment has been implemented,

07:43and the senior judge, Justice Murshid Ali Shah,

07:48has himself said in several cases,

07:51that this is a constitutional matter,

07:57and the constitutional benches have to be heard,

08:00so he has also taken an oath.

08:02But Mr. Pasha, he and the senior judges have also written in the letter,

26th Constitutional Amendment Challenge...? - Mustafa Nawaz Khokhar raises important questions

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