“Article 175-A is an attack on the independence of the judiciary,” said Harris before the 17-member larger bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry hearing identical petitions challenging the 18th amendment.
It was declared in the Al-Jihad Trust case that the chief justice’s recommendation for the appointment of judges would be mandatory for the independence of judiciary, Harris argued. It was also declared in the Al-Jihad Trust case that the executive’s intervention in judges’ appointment was against the independence of the judiciary, he said. “In the Zafar Ali Shah case, it was declared that even parliament cannot make amendments that would hurt the independence of the judiciary,” he argued.
Earlier in the morning, counsel for the Punjab government Shahid Hamid resumed his unfinished arguments in support of the 18th amendment and pleaded that the induction of Attorney-General of Pakistan and Pakistan Bar Council member would be in favour of the judicial commission as these two persons would help out to assess the intelligence and popularity of any nominee for the post of judge.
He argued that the new system of appointment of judges is in keeping with the Beijing agreement of 1997. Some 19 chief justices, including the country’s top judge, participated in the conference which had sealed the accord.
When he said that the parliamentary committee can be formed within a day, Justice Ramday retorted that if the NAB chairman could not be appointed even after three months and the election commission’s constitution could be held up for four months, then how can the committee be formed within a day?
“Though the attorney general assured us a month ago that the appointment of NAB chief was a few days away the appointment has not been made as yet,” the CJP observed. Let us know whether the parliamentary committee would only assess the professional qualification of the judges or would also assess other aspects.
Justice Jawad S Khawaja observed, “In such a parliament where 14 political parties have representation, they would have great difficulty appointing judges under the new system”.
Shahid Hamid argued that the parliamentary system is unaffected by the abolition of the prime minister’s role in the appointment of judges, because the committee has been given the role of the PM, as there are many articles in the Constitution in which the role of the premier is quite limited.
He submitted that the government of Punjab withdrew the suggested rules and regulations for the judicial commission so that the Supreme Court may better formulate the rules and regulations for the commission.
If the parliamentary committee will discuss the conduct of the judges it would be a violation of article 68 of the Constitution, said Justice Shakirullah Jan, adding that according to the Constitution the conduct of the judges cannot be debated in parliament.
According to the 18th amendment, the parliament would appoint the Chief Election Commissioner, the CJP observed.
Justice Ramday remarked that an election commissioner could be a serving judge and you want him to be humiliated by presenting him in parliament by making him a party?
To declare void any part of the 18th amendment would be akin to reducing the powers of parliament, Shahid contended. Advocate General Punjab Khawaja Harris opposed the arguments of Shahid Hamid, the counsel for the Punjab government, and took his own independent stance on the piece of legislation.
The hearing was adjourned until Monday, August 25.
Published in The Express Tribune, August 20th, 2010.
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