ISLAMABAD: The counsel representing the government of Khyber-Pakhtunkhwa told the Supreme Court on Thursday that it was for Parliament to impose limitations on the amending powers and that the judiciary has no say in the matter.
The previous K-P government had engaged Advocate Iftikhar Gilani to respond to several petitions challenging the renaming of the province through the 18th constitutional amendment.
Defending the renaming, Gilani argued that the name Khyber-Pakhtunkhwa denoted neither a particular race nor a certain ethnicity but the identity of the people of the province.
He said the amendment in Article 1(2) of the constitution was in complete harmony with the letter and spirit of the constitution.
The counsel said the power of amendment conferred on Parliament under Articles 238 and 239 was in the nature of constituent power and not legislative power.
He argued that there were around 32 constitutions of the world where the basic structure of the constitution had been defined and laid down with precision in the constitution itself.
Justice Jawwad S Khawaja asked him whether the power to amend the constitution is derivative or constituent, adding that the legislative assembly only has derivative power while the constituent assembly has constituent power.
Justice Ejaz Afzal asked how the Parliament could take away the fundamental rights, to which Gilani replied that the fundamental rights vary from century to century and civilisation to civilisation.
However, Justice Ejaz observed that according to Article 8 of the constitution, laws inconsistent with or in derogation of fundamental rights were void.
Gilani replied that constitutional amendments are not law. “In the Indian constitution, distinction is made between constitutional amendments and law, but in our constitution there is no such distinction.”
He said Parliament has the power to repeal the Constitution to replace it with a new one. “The Parliament is supreme, because it represents the people.”
After the conclusion of the proceedings, the court adjourned the hearing until Monday.
Published in The Express Tribune, May 29th, 2015.
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