ISLAMABAD: The court will have to see whether or not the parliamentary committee for appointment of judges is in conflict with Article 7 of the constitution in which the judiciary is kept separate from the state, Chief Justice Iftikhar Muhammad Chaudhry remarked on Tuesday.
Parliament did not have the authority to appoint judges in the past but under the new amendment it has assumed these powers, the CJP added.
Khawaja Harris, advocate-general Punjab, resumed his arguments before the 17-member larger bench headed by CJP Iftikhar Muhammad Chaudhry hearing the 18th amendment case. He pleaded that the Supreme Court on the basis of the Objectivess Resolution has highlighted the basic structure of the constitution.
He also contended that the law and constitution is what the court declares to be the law and constitution, to which Justice Javed Iqbal remarked as to why the Objectivess Resolution is being emphasised, (despite the fact that) it had been opposed.
“The All India Muslim League adopted the Objectives Resolution in which apart from the basic Islamic principles the rights of minorities were also protected…this is even larger than a mere resolution,” the CJP observed.
Justice Javed Iqbal said the Objectives Resolution has never been considered the basis of Constitution of Pakistan, whether the autonomy and jurisdiction of the parliament can be decreased in light of the Objectives Resolution and whether the court, by making the preamble of Objectives Resolution, can strike down the amendment made by the parliament.
The Objectives Resolution despite criticism, reservations, and opposition was accepted and right from its adoption till 1973 its existence had been acknowledged, Khawaja Harris submitted to which the CJP remarked: “We accepted the importance of Objectives Resolution in the judgment of July 31.”
The court declared in the review petition of the Zafar Ali Shah case that even the parliament cannot change the basic structure of the constitution, Harris pleaded.
Only once in 1962 a dictator, while making a constitution, introduced some changes to the Objectives Resolution and the dictator omitted a word “complete” concerning the independence of judiciary, Harris argued.
On the basis of Objectives Resolution the power of parliament to legislate is being curtailed whereas the Objectives Resolution does not speak about it, Justice Javed Iqbal observed.
“There is no concept of basic structure in the constitution…we are just assuming it,” Justice Saqib Nisar remarked.
Harris said the Supreme Court in its various judgments has pointed out the basic structure, to which Justice Saqib Nisar said that by striking down the constitutional amendment against the basic structure, “are we not amending the Article 239 of the Constitution?”
There are many Articles in the Constitution which undermine the apex court’s authority to exercise judicial review of (constitutional) amendments, but the court nevertheless fulfilled its duty, Harris maintained, adding that the spirit behind Article 7 of the Constitution is that the Supreme Court safeguard the interest of the masses against state.
“We will have to see whether or not the parliamentary committee for appointment of judges is contrary to Article 7 of the constitution in which judiciary is kept separate from the state,” the CJP observed.
It is clearly written in the Beijing Declaration that a judge makes a decision without any pressure and influence if the judiciary is independent, Khawaja Harris said.
The parliamentary committee cannot be termed a parliament…when its rules are formulated its role would become clear to us all, Justice Javed observed.
The parliamentary committee would formulate its rules itself and the judicial commission will have no business with them, the CJP observed.
Ayub Khan used to interview judges himself before appointing them as a judge of the superior court whereas article 175-A has been introduced by the elected parliament, not by an army dictator, Justice Saqib Nisar observed.
The hearing was adjourned until Wednesday (today).
Published in The Express Tribune, August 25th, 2010.
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