Article 175-A criticised

The debate at the SC focused on the operability of the new procedure for electing judges of the superior courts.

ISLAMABAD: Wednesday’s debate at the Supreme Court focused on the operability of the new procedure for electing judges of the superior courts. Perhaps the most scathing indictment of article 175-A of the constitution came from Justice Javed Iqbal. “The newly introduced procedure of appointing judges is incomplete and can create crises; secondly, it does not even match the procedure set out in the Charter of Democracy,” said the senior-most judge of the court.

The 17-member bench headed by Chief Justice Iftikhar Chaudhry was hearing the multiple challenges to the 18th amendment of the constitution. “There is no harm in admitting that article 175-A was inserted in the constitution without carrying out enough homework to ensure the workability of the new scheme for judicial appointments,” said Iqbal. “No system is inherently good or bad; everything depends on the people who operate it.”

Earlier, while resuming his arguments on behalf of the federation, Attorney General of Pakistan Maulvi Anwarul Haq had argued that the separation of the judiciary from the executive was limited to the level of judicial magistrates only. And that with the passage of time, all the flaws in the new system would be removed.

Here, Justice Jawwad
S Khawaja demanded of the AG whether the seemingly unfettered powers conferred on the parliament by article 239 of the constitution would also empower the legislature to encroach on the freedom of the judiciary. And was the judiciary to defend only article 239 of the constitution or was it bound to defend the entire constitution.

“We should read article 239 along with other articles of the constitution,” demurred the AGP. “When you say the constitution should be read as a whole, are you including the preamble as well?” baited the chief justice. Realising the course the discussion was taking, Haq quickly ceded that the preamble spoke of independence as integral to the character of the judiciary and that the procedure of appointing judges is critical to ensuring the same.

This led to further debate regarding the interaction of the judiciary and the executive as the working of the parliamentary committee and the judicial commission for appointing judges. Iqbal asked the AGP about the limits of parliamentary sovereignty and whether its limits needed definition or circumscription by judicial review.

Meanwhile, Justice Khalilur Rehman Ramday was concerned about the fact that the new system would subject the will of the judicial commission to that of the parliamentary committee, despite the fact that the commission is to comprise the chief justice of Pakistan, two senior SC judges, a retired CJP or a judge of the apex court, the law minister and a representative of the bar. “The role of the judicial commission seems to be only of nominating people for appointment; all the other powers seem to lie with the parliamentary committee,” said Ramday.

The AGP attempted to mollify Ramday by saying that judges would be appointed by the judicial commission and only those selected by the commission would be appointed judges but Ramday refused to be convinced. “Let’s call a spade a spade and let’s be honest to ourselves and to the constitution,” he chided the lawyer.

Justice Tassaduq Hussain Jillani’s subsequent queries to the AGP seemed to justify Ramday’s reservations. When asked whether the judicial commission would have the power to re-nominate someone rejected by the parliamentary commission, Haq admitted that names could not be repeated, implying that the judicial commission would not have primacy over the parliamentary commission as he’d earlier suggested.

Here, Khwaja also raised the concern that the article seemed to confer neither the prime minister nor the president with any powers of oversight on the parliamentary committee. And further, that such sovereign power was to be given to eight members who were not expressly elected for this purpose, something, Khwaja seemed to suggest, ran counter to democratic imperatives.

The chief justice finally adjourned the hearing till Thursday (today).

Published in The Express Tribune, September 2^nd, 2010.