Despite having severe differences, the legal minds of all the political parties, including the Pakistan Tehreek-e-Insaf (PTI), agreed on Thursday to change the mode of appointment of the Supreme Court judges as they approved amendments to the Article 175A of the Constitution.
The Senate Standing Committee on Law and Justice, while deliberating upon the role and functioning of the Judicial Commission and the Parliamentary Committee changed the composition of the Judicial Commission and re-empowered the Parliamentary Committee.
During the meeting, the committee decided that the Parliamentary Committee might accept or reject the nominations and that its decision would not be subjected to any challenge in the Supreme Court or a high court.
“Article 175A of the Constitution stands amended so that the constitution of the Judicial Commission has been changed, Parliamentary Committee has been empowered and a new Committee called the ‘Initiation Committee’ has been formed, which shall nominate the judges to the High Courts,” a statement, issued by the committee, stated.
The committee, headed by Senator Syed Ali Zafar, discussed the Constitutional Amendment Bill and decided that the decisions of the Initiation Committee, the Judicial Commission and the Parliamentary Committee must be made within fixed timeframe.
The meeting was attended by senators Rana Maqbool Ahmad, Farooq Hamid Naek, Azam Khan Swati, Munzoor Kakar and Shibli Faraz. Law Minister Azam Nazeer Tarar was also in attendance along with other senior officers of the departments concerned.
Despite a nod from the Senate committee, legal experts have questioned how the constitutional amendment could be passed in the current atmosphere in parliament, where 131 PTI lawmakers had resigned and were no longer participating in the proceedings.
At the outset of the meeting, the committee chairman said that no nation could progress without the independence of judiciary. In order to ensure the independence of judiciary, Barrister Zafar emphasised the need for transparency and security in the process of appointing judges as well as their removal.
Tracing the history, Zafar said that previously there was an unofficial process of consultation between the Executive and the chief justices concerned through which the judges were appointed but after the 18th and 19th amendments, a more transparent and robust process was initiated in which the judges were appointed first by the Judicial Commission and then as a second stage by the Parliamentary Committee.
Through a Supreme Court judgement, Barrister Zafar pointed out, “the powers of the Parliamentary Committee were taken away and it was left without any jurisdiction to deny the nominations made by the Judicial Commission and, hence, the Parliamentary Committee became a toothless body”.
Zafar further pointed out that a recent meeting of the Judicial Commission also showed that there was a need for maintaining a balance, so that the decision about the appointment of judges could be made in a more transparent and structured manner.
Regarding the amendments, he said there were three potential areas. Firstly, he stated, the composition of the Judicial Commission had been changed so that instead of five judges being part of the Judicial Committee there would now be four judges, including the chief justice of Pakistan. He added that the remaining three would be represented by the law minister, attorney general for Pakistan and a representative from the Pakistan Bar Council (PBC). In this manner, he added, the majority in the Judicial Commission would from the judges.
The second part, Zafar continued, related to re-empowering the Parliamentary Committee. It was decided that the Parliamentary Committee might accept or reject the nominations and that its decision would not be challenged in the Supreme Court or in a high court. In this manner, there would be a two-layered process to ensure that the best person was appointed as a judge of the superior judiciary.
The amendments also proposed that there would be an ‘Initiation Committee’, which would nominate the judges of the high courts for consideration by the Judicial Commission and the Parliamentary Committee. Currently, the nomination for the elevation of high court judges is made by the chief justice of Pakistan.
Zafar, had initially opposed the Initiation Committee, stating that the matter of nomination should be left to the discretion of the chief justice of Pakistan and the relevant judges of the high courts because their nominations could be considered or rejected first by the Judicial commission and then by the Parliamentary Committee, therefore, there was no need to add a third-tier which could only complicate the matter.
Zafar pointed out that having representation by the law minister, attorney general for Pakistan and the PBC at the stage of nomination would also lead to more conflict and confrontation. However, after deliberation, the committee decided to approve the amendment pertaining to ‘Initiation Committee’.
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