Legal Query: After some matrimonial dispute Mst. Nazia deserted her children at the home of her husband and gone to her parents’ home. From there she filed a petition of Habeas Corpus under section 491 Criminal Procedure in the court of district and Sessions Judge Lahore, against the father for the recovery of her two minor sons aged 8 and 9 years.
Mr. Imtiaz Aziz contacted and engaged our law firm to defend the petition. The father took the plea that the minors has crossed the age 7 years and attained the age discretion now they need the direction supervision of the father. So the permanent custody of the minors should be handed over to the father.
The learned judge handed over the custody of one younger son to the mother and of the elder son to the father and directed the spouses to approach the guardian court for the permanent custody of the minors.
The father moved a petition under section 25 of the Guardian and Wards Act in the court Guardian Judge Lahore for the permanent custody of the minors on the ground that now the minors needs direct supervision of the father. The father is man of means and providing maintenance his minors since their birth and who can provide good accommodation, tuition, couching and security to their minors. The father is in better position to up-bring their minor sons and the welfare of the minors requires that their permanent custody should be handed over to the father.
Legal Position of the Case: According to me the minors have crossed the age of 7 years and attaining their age of puberty now they need the direct supervision of the father for their education and teaching. The father is man of means and also maintaining his minor sons since their birth. On the other hand the mother has no independent financial resources to maintain her sons. She is totally depending on the maintenance allowance of the father. The mother is residing in her parents’ home and there is no sufficient accommodation to easily keep the minors. Keeing in view the welfare of the minors the Guardian Court will hand over the custody of the minor sons to the father.
A British National of Pakistani origin had some land in Pakistan. His property was illegally occupied by his co-sharers in Pakistan. His co-sharer were not giving his due share in the property and profits. He engaged and appointed our law firm as Special Attorney.
Now we filed a suit for partition and a suit for mesene profits. We are very successfully conducting these case which are likely to decided in near future in favor of our client
During his confirmation hearings, Judge John Roberts, the Chief Justice of the United States of America, famously admitted that he was aware of the fact that millions of people had elected the US Congress and not even one person had voted for the Supreme Court. More recently, in the now famous Obamacare judgment pronounced on June 28, Roberts declared that it was not the job of the Supreme Court to “protect people from their political choices”. Such is the deference for the legislative branch of the government in the country that literally invented the doctrine of judicial review.
Justice Iftikhar Chaudhry, the Chief Justice of Pakistan, recently told his audience at the Karachi registry of the Supreme Court that in Pakistan it is not the parliament but the constitution that is sovereign. Any student of political science or constitutional law will be able to see clearly the fallacy in such a statement. Parliamentary sovereignty and the constitution are distinct concepts and cannot be substituted. Therefore if the parliament is not sovereign as the Chief Justice says, it calls into question the status of the constitution as a higher law. The theory of constitution as higher law rests entirely on the sanction it receives from a pouvoir constituent. Admittedly, in contrast to the English constitution, where there are written constitutions with rigid procedure for amendment, the parliament acts in two capacities – legislative and constituent. The written constitution provides a framework and legislation has to be undertaken in that framework. However, the fact that a parliament can at will amend the constitution makes it sovereign and supreme.
A valid argument against parliamentary sovereignty would be that the constitution is not a higher law and not the fundamental law of the land. The Chief Justice has taken a self contradictory position ie arbitrarily vesting sovereignty and supremacy in a document but putting the parliament that has the power to amend the constitution beneath it.
Technically in a pure parliamentary democracy, the only limit on a parliament’s power is when it tries to clip its own wings as shown in Jackson and Others v Attorney General  1 AC 262 [Jackson].