Justice Shah questions 'unelected judges' curbing powers of elected representatives
Pakistan
Says matter was related to supremacy of parliament, not illegal amendments
ISLAMABAD – Justice Mansoor Ali Shah – who was part of the three-member Supreme Court bench, which struck down the changes introduced in NAB laws with a 2-1 majority – in his dissenting note noted that the matter was related to the supremacy of Parliament, not of illegal amendments.
"The majority has fallen prey to the unconstitutional objective of a parliamentarian, of transferring a political debate on the purpose and policy of an enactment from the Houses of the Parliament to the courthouse of the Supreme Court."
Justice Shah said he did not agree with the majority judgment and share the details of his reasoning later because of time shortage. “The basic question is not of NAB amendment but of the parliament elected by 220 million people.”
The majority verdict failed to understand that the State’s powers would be used through the elected representatives, read the dissenting note authored by Justice Shah.
“In my humble opinion, the primary question in this case is not about the alleged lopsided amendments introduced in the NAB law by the Parliament but about the paramountcy of the Parliament, a house of the chosen representatives of about 240 million people of Pakistan.”
Moreover, Justice Shah says, the majority judgment also failed to understand the principle of division of powers [trichotomy of powers] which is the foundation of a democratic system. The question in the case was of parliament’s supremacy, not of illegal amendments, he explained in the dissenting note.
According to Justice Shah, who focused on the court’s jurisdiction and the parliament supremacy, the basic question is of the constitution’s importance and the division of state powers in parliamentary democracy.
In the same line of arguments, he further says the basic question is of the limits of unelected judges’ decision making on a law passed by the parliament. Hence, the majority judgment didn’t grasp the powers enjoyed by the parliament.
Justice Shah’s dissenting note also mentions that the parliament’s authority to legislate never ends. If the legislature can make NAB law, it can also withdraw and amend the same. “By not agreeing with the majority judgment, I hereby rejected the petition.”
The dissenting note came as the three-member bench headed by Chief Justice Umar Ata Bandial declared the amendments introduced by the parliament in NAB laws null and void while also ordering to send the closed cases back to the anti-graft body within seven days.
