ISLAMABAD: It was an irony not lost on anyone present in Courtroom 1 on Tuesday. The staunchest opposition to the ceding of prime ministerial powers to a parliamentary committee came from the Supreme Court bench, and not the government’s lawyers.
The 17-member bench headed by Chief Justice Iftikhar Chaudhry was hearing arguments against the 18th amendment to the constitution, focusing particularly on the role of the parliamentary committee in appointing judges of the superior courts. “No one can curtail the powers of the prime minister; how could his power to appoint judges be given to the parliamentary committee?” asked Chaudhry. To this, Attorney General for Pakistan Maulvi Anwarul Haq had no choice but to agree that the parliamentary committee had taken over the prime minister’s functions.
Earlier, resuming his arguments in defence of the amendment, Advocate General Sindh Yousaf Leghari said all petitions challenging the amendment should be disposed of for non-maintainability as the amendment did not feature issues of public import nor were the petitioners affected parties.
Leghari also took issue with the right of the judiciary to review the amendment. “The parliament gave birth to the judiciary; how can it now dictate to the parliament?” he asked. To substantiate his view, he cited the example of the US, where judicial appointments are the prerogative of the executive.
Such review, argued Leghari, also ran counter to the court’s previous judgements. “In the Zia-ur-Rehman case, the judiciary itself restricted its authority to conduct judicial review while hearing the petitions against the seventh amendment, the SC said that review of the amendment was beyond their jurisdiction,” said the lawyer.
From there, Leghari turned his guns on what he felt were the detrimental effects of having judges appoint other judges. “In the Sindh High Court, only six judges of a total of 29 are Sindhi,” he argued. Here, he got a sharp reprimand from the chief justice who reminded him that the constitution did not allow for ethnically-motivated discrimination.
But this didn’t deter Leghari any. “Had there been a single Sindhi judge in the bench which awarded capital punishment to Zulfikar Ali Bhutto, the hanging would not have happened,” he said. Justice Javed Iqbal jumped in here with an even sharper rebuke regarding the lawyer’s ‘political’ statements. “These are judicial appointments we’re talking about, not those of tehsildars or patwaris, that there ought to be provincial quotas,” said the judge. “The only criterion for the appointment of a judge is merit.”
But Leghari would not be dissuaded from his stance and to Justice Khalilur Rehman’s assertion of a larger Pakistani identity, he retorted defiantly: “We will not become Pakistani by the wielding of sticks.”
At his turn, Haq argued that in the Al-jihad case, the SC had decided that the appointment of judges is an administrative issue and that the parliament had the right of amending the constitution. The attorney general also attempted to sway the court regarding the issue of the premier’s powers. “As the chairman of the parliamentary committee on constitutional reform Raza Rabbani informed this court earlier, the parliamentary committee has not been given the powers of the parliament; only the specific powers of the premier regarding judicial appointments,” he pled.
But the judges weren’t persuaded. “Raza Rabbani said things even the constitution does not permit,” observed Justice Jawwad S Khawaja. “Article 175-A does not envisage any role for the premier in the appointment of judges; how would this affect the operation of article 48, which says the president must perform all functions in consultation with the prime minister?” asked Chaudhry. Here, Justice Shakirullah Jan pointed out that the SC itself had carved out the role for the prime minister – where none had existed – in the Al-Jehad Trust case. “The prime minister cannot be kept in the dark on judges’ appointments,” observed the chief justice drolly.
Justice Tariq Pervez also brought up the issue of the operation of the committee. “If the parliamentary committee will be authorized to accept or reject the names of nominees, the judicial commission will be rendered redundant.”
The attorney general was still on his feet when the chief justice adjourned the hearing till Wednesday (today).
Published in The Express Tribune, September 1st, 2010.
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