ISLAMABAD         -          The federation’s counsel on Thursday argued before the supreme Court of pakistan that unless the court identifies the constitutional prohibition it cannot strike down the law. Makhdoom ali Khan, representing federation, stated that the court can declare a law unconstitutional if it curtails the independence of the judiciary. The exercise of judicial review inherently become different when the judges think what they think is the best for the society. he added that all over the world the courts do not question the motive of the legislation. he made the submissions before a three-member bench of the apex court headed by Chief Justice of pakistan Justice Umar ata Bandial and comprising Justice Ijaz-ul-ahsan and Justice syed Mansoor ali shah during the hearing of former prime minister Imran Khan’s petition against the amendments in the National accountability Ordinance (NaO), 1999. Justice Mansoor said that if tomorrow the parliament decides to get rid of the capital punishment then can the court say it cannot. The families of the deceased come to the court and say that their rights are affected as the accused could be hanged. he questioned would this change also apply to the pending murder trials? Makhdoom ali Khan said after the change in the law the persons on death row will not be hanged. he contended at times there were 220 capital offences in england ie for entering into the forest, or stealing a certain amount. But now there is no capital punishment in england for these and many other crimes, except treason. he submitted that due to capital punishment many european countries do not have extradition treaty with pakistan because they think if a person convicted in murder case in their countries, if extradited to pakistan he will be hanged. Justice Ijaz-ul-ahsan remarked that in Islamic law there is concept of eye for an eye. he questioned that can the state abolish the capital punishment. The federation counsel replied: “we should not see Islam with narrow mind.” Islam also recognises ‘Diyat’ if there is a law for eye for an eye. he said the capital punishment existed prior to Islam. he added that many Islamic laws are customary, based on the customs which were prevailing at that time. he then presented views of Islamic scholars ie Dr Khalid Masood, former chairman of Council of Islamic Ideology, and member of the supreme Court appellate Bench, hashim Kamali and many others. he said hashim Kamali considers what happens in the parliament is ‘Ijma’ and ‘Ijtihad’. Makhdoom submitted that the holy Quran also sanctions the ‘Qisas’ and ‘Diyat’. he said on account of ‘Diyat’ the families of the victims have condoned the murderer, adding the courts in pakistan have not rejected this. The Chief Justice said that in Islam there is also concept of ‘amanat’ and ‘Khayanat’. he said that a lot of emphasis has been put on ‘Khayanat’ and public trust by an office-holder. The CJP said that trusteeship in Islam is just an imagination or has significance. He questioned whether violation of trust is crime and remarked that the composition of the offence has been changed. Justice Mansoor questioned; “Do I need to be Muslim for the interpretation of a statute.” whether morality of belief has something to do with it, or it should be interpreted in accordance with the constitutional provisions. “Do we (judges) set aside the law on the basis of morality or belief or on the basis of the violation of fundamental rights?” Justice Mansoor further said that if the parliament decided to abolish the NaB law then what power the courts have to strike down or repeal it. he noted when the parliament has power to make law then it also has power to repeal it. he said that the court cannot say as there is no accountability law therefore declare it (amendments in NaB) unconstitutional. The Chief Justice inquired from the counsel that does he not think some fundamental rights are involved in this case. he also questioned can the government make changes in pakistan penal Code (ppC) or the property law that affect the rights of the citizens? he submitted that in 1999 the National accountability Ordinance was made with retrospective effect from 1985. If the parliament can make law with retrospective at that time, then why can’t it make the law with the retrospect affect again. he said it is not his arguments that there should be no accountability of the office-holders. Later, the bench adjourned the hearing of the case till February 7.