20000314cj asks pml counsel to suggest some way out

MEHMUD AHMED

ISLAMABAD: Chief Justice Irshad Hassan Khan asked Khalid Anwar, counsel for main petitioner challenging the validity of the Provisional Constitutional Order of 1999, to see if there was constitutional provisions for calling a referendum as a solution to the current situation in the country so that it could be called.

The Chief Justice asked the counsel on Monday to examine all aspects of Article 48 (6) of the 1973 Constitution which authorised the President to assign an issue to people for a straight 'yes' or 'No' vote in a public referendum.

He said that some way to protect the rights of the people had to be found out without a confrontation. "We do not want bloodshed or chaos in the society," he remarked when the hearing in the petitions questioning the justification of Proclamation of Emergency and the validity of the Provisional Constitutional Order of 1999 resumed here.

The 12-member full court of Supreme Court was hearing the petitions against the PCO for the ninth day and sixth day for Khalid Anwer to be at the lectern for his clients who are the Speaker of the suspended National Assembly and Chairman of suspended Senate.

Besides the Chief Justice, the full court is composed of Justice Mohammad Bashir Jehangiri, Justice Ijaz Nisar Sheikh, Justice Abdur Rahman Khan, Justice Munir A Sheikh, Justice Rashed Aziz Khan, Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Chaudhary, Justice Qazi Mohammad Farooq and Justice Rana Baghwandas.

Article 48 of the Constitution deals with the powers of the President and its Section Six lays down: If, at any time, the President, in his discretion, or on the advice of the prime minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either a 'Yes' or 'No'.

Khalid Anwer told the court, that in his opinion, a referendum was not more than a constitutional opinion and had no other significance. However, he said he would deal with the question in detail on the last day of his submission.

Earlier, resuming his arguments after the weekend holidays, Khalid Anwer applauded the Supreme Court for expanding its jurisdiction as in the case of Farooq Leghari it had ruled that the Fundamental Rights of the citizens as well as its power to enforce those could not be taken away under any circumstance. The Court had ruled that the proclamation of emergency also did not affect those rights and its powers.

He said the judgement was "revolutionary" and had not been given in any other decision in any other jurisdiction and hoped that the Court would do the same.

Khalid Anwer said that the Supreme Court was the highest and a permanent mechanism for the enforcement of the fundamental rights.

The counsel also said that under the "Rule of Proportionality" derived from the Doctrine of Necessity, the situation that had arisen due to the dismissal of the Army Chief by Nawaz Sharif, the "constitutional governance could not be suspended for an indefinite period". He said the rule could not be used to "legitimise the illegitimate government" however good its social, economic and political agenda may be.

Once again Khalid Anwer attacked the judgement of late Federal Court written by Chief Justice Mohammad Munir upholding the dismissal of the Constituent Assembly by Governor General Ghulam Mohammad in 1955 and said it was in mockery of what the Father of the Nation had said about that legislature. The Quaid-e-Azam, the counsel reminded, had described the Constituent Assembly a fully sovereign body that was to become an example for the world.

Khalid was still arguing his case when the Court rose for the day.