‘Ill will played a role in appointment of judges’

The 18th amendment provides no solution to the issue of appointment of judges in the Balochistan High Court.


Qaiser Zulfiqar August 18, 2010

ISLAMABAD: The 18th amendment provides no solution to the issue of appointment of judges in the Balochistan High Court as four of its senior judges are going to retire on September 5, Justice Jawad S Khawaja observed on Tuesday.

“Even if we concede the amendment, the BHC ceased to exist as per the amended version of the Constitution,” Justice Khawaja added.

“We have an immediate issue: how to deal with the appointment of judges as additional judges at provincial high courts are going to retire next month,” Chief Justice Iftikhar Muhammad Chaudhry interjected during the course of hearing of the 18th amendment case.

A 17-member SC bench headed by the CJP is seized with the matter.

However, Justice Saqib Nisar noted that the previous method for appointment of judges was flawed, saying “it’s a reality that ill will did play a role in the appointment of judges”.

Justice Asif Saeed Khosa observed that the previous system was flawed due to which the judiciary had pointed out those faults in the system in the Al-Jihad Trust case.

The CJP remarked that there are several stumbling blocks in the implementation of the 18th constitutional amendment as four months have lapsed since its passage but the Election Commission is yet to be set up. Earlier, counsel for the Punjab government, Shahid Hamid, submitted that a nominated candidate for appointment as judge would have the opportunity to challenge the decision of the parliamentary committee if not appointed.

Though the (constitutional) provision provides an opportunity to a rejected candidate aspirant for the post of judge to challenge the decision of the parliamentary committee, “the institution of the judiciary cannot afford such litigation,” observed Chief Justice Iftikhar Muhammad Chaudhry in response to the Punjab government’s stance.

“There are certain constitutional norms but you have subjected them (through the amendment) to litigation,” observed the CJP while asking the counsel whether the chief justice of a high court would continue to serve if he is not elevated.

Justice Tassadaq Hussain Jillani questioned Shahid Hamid as to what would be the response of the parliamentary committee if the judicial commission re-routed a nomination for appointment.

Justice Khalilur Rehman Ramday added: “in the presence of a judicial commission that would include the CJP, two senior judges of the SC, one retired judge of the SC, attorney-general, law minister, representative of the bar, where was the need to establish a parliamentary committee for appointment of judges?

Prior to any rejection, the parliamentary committee would send the matter to the judicial commission, Shahid Hamid stated.

He made reference to the speech delivered by Mian Raza Rabbani in the National Assembly and stated that the new judicial policy would ensure freedom of judiciary, adding that Article 175-A was included in view of the distribution of powers. The prime minister had given his powers to the parliamentary committee.

How would it happen and where is it written in the constitution, was the point raised by Justice Ramday on this argument.

What kind of reason would be recorded by the parliamentary committee for rejection of a candidate, questioned the CJP. The selection of judges is done by the judiciary while executive is the sole authority to appoint the judges, he added.

While defending the new procedure for appointment of top judges, Shahid Hamid said that despite the fact the constitution does not demand that nominations of judgeship be sent to spy agencies, it was a settled practice of the previous system.

The court adjourned the hearing until Wednesday (today) with a direction to Shahid Hamid to conclude his arguments.

Published in The Express Tribune, August 18th, 2010.

COMMENTS (5)

hakeem | 13 years ago | Reply @Sultan Ahmed Same old argument of ground reality that infact gave ground for dictators...identical thing Musharaf said that Domocracy is misfit for Pakistan, he further reasoned that in west they need just a warning tape to keep people away from a place but in Pakistan he said people jump over barbed wire. Wake up problem is not with democracy its instead with representatives you, i and our fellow Pakistanis elect.
Sultan Ahmed. | 13 years ago | Reply Keeping in mind the ground reality, if you want to take good and right decision plz make past your teacher, learn the lesson from the past and decide.
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