He said that the present/permanent constitution of 1973 has a conscience and a basic structure, if the conscience of basic structure is violated by the parliament through the amendment the theory of constitutional conscience or basic structure shall enjoin this court to strike down the amendment.
Pirzada stated that the power of this court to visit judicial review and strike down the amendment subject to certain conditions including violation of basic structure remains totally intact. Pirzada said that independence of judiciary has been compromised by the amendment adding, the process envisaged in Article 175-A for appointment of superior courts judges is not an amendment but a fresh piece of legislation.
It is a new system and a complete departure from the earlier process. In addition, he contended, that Article 175-A cannot be partly saved under the "doctrine of savorability as it is wholly bad." Referring to the amendment in Article 51 of the constitution by (National Assembly) he said that as much as 20 percent of the parliament would come through the nomination instead of the elections. It has seriously impaired parliamentary democracy which is an inalienable part of the basic structure, he added.
Chief Justice Iftikhar Muhammad Chaudhry pointed out that Pirzada had not challenged Article 51. Pirzada stated that the provision was linked with Article 63-A, which he had challenged. He termed the Amendment with regard to Article 63-A "obnoxious" wherein a party head has been empowered to disqualify a member. The party head is not known to the constitutional law.
Similarly, intra-party elections are no longer a constitutional requirement, he added. Pirzada contended that the amendment has done nothing except strengthening the grip of individuals or party heads over their parties. These parts of the 18th Amendment are destructive of fundamental rights of the people as a whole, he emphasised.
He said that provincial autonomy has been disturbed as eight items of the concurrent legislative list including the important subject of 'electricity' have been included in the federal list. The executive and legislative power of the provinces has been taken away by the amendment; however it did not touch article 157 of the constitution.
He referred to Article 157 of the constitution and said that the provinces cannot levy taxes (on electricity) unless the amendment is declared null and void.
Article 157 (Electricity) reads; "(1) The Federal Government may in any Province construct or cause to constructed hydro-electric or thermal power installations or grid stations for the generation of electricity and lay or cause to be laid inter-provincial transmission lines. (2) The Government of a Province may- (a) to the extent electricity is supplied to that Province from the national grid, require supply to be made in bulk for transmission and distribution within the Province: (b) levy tax on consumption of electricity within the Province; (c) construct power houses and grid stations and lay transmission lines for use within the Province; and (d) determine the tariff for distribution of electricity within the Province."
Referring to the dissenting note of Aftab Sherpao on the subject, Pirzada stated that the 18th constitutional amendment and Article 157 of the constitution cannot coexist. Justice Javed Iqbal observed that all the political parties revolve around personalities and once they (personalities) are detached, nothing is left behind in the parties. Meanwhile, Advocate Kokab Iqbal concluded his arguments and Shahid Orakzai began to make his submissions against the 18th Amendment. The court will resume the hearing today (Tuesday).