ISLAMABAD: Chief Justice Iftikhar Muhammad Chaudhry on Monday said that if parliament continues to curtail the judiciary’s powers then it will be next to impossible to stop dictators from imposing martial law in the country.
The chief justice made the remark while hearing identical petitions challenging certain provisions of the 18th amendment, with particular reference to the formation of a judicial commission for the appointment of top judges.
“We have a parliamentary government system, so how could the parliamentary committee on constitutional reforms (PCCR) ignore the role of prime minister and send the recommendations pertaining to judges’ appointment directly to the president,” the CJP wondered aloud.
Such mandatory powers to PCCR are a clear violation of Articles 7 and 48 of the Constitution, he added. Justice Khalil-ur-Rahman Ramday chimed in with the observation that “the PCCR has the power to veto the recommendations of the judicial commission accordingly. The commission has a secondary role in the appointment of judges.”
At this point the federation’s lawyer Waseem Sajjad argued that the amendments have the recommendation of all the political parties and no elected parliamentarian can challenge them. “So the court has no right to fix the powers of the parliament,” Sajjad asserted. Justice Jawwad S. Khawaja countered this point by saying that Article 68 of the Constitution does not allow any legislator to discuss the conduct of the judges. “So they (parliamentarians) have no right to amend the clause in the Constitution concerning the appointment of judges,” he returned.
He said that the PCCR has been made superior to the parliament and it does not match with our judicial system.
Justice Ramday interjected that the decision on the procedure of judges’ appointment was given in a matter of one day, superseding the 150-year-old method altogether.
“…the procedure for appointment of judges was not even discussed for nine hours as stipulated in the Constitution,” he pursued, adding that “political decisions are different from judicial pronouncements”.
During the course of proceedings, Justice Mian Shakirullah said that it was very dangerous to give discriminatory (veto) power to the PCCR in which even it (PCCR) can strike down the recommendations of Chief Justice of Pakistan.”
Waseem Sajjad, while concluding his arguments, said: “It was not the Parliament that formed the PCCR. Instead, the Constitution formed it,” Sajjad remarked.
The federation’s lawyer also informed the apex court that it was drafted in the “Charter of Democracy” that there will be a separate parliamentary committee for the appointment of judges in the superior judiciary. He contended that the elected parliamentarians must be given their due rights in amending the laws regarding the judges’ appointment.
Published in The Express Tribune, August 3rd, 2010.
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