18th Amendment: CJ assures govt apex court to resolve issues
ISLAMABAD, July 6: Chief Justice Iftikhar Mohammad Chaudhry put the government at ease on Tuesday by assuring it that while deciding petitions challenging the 18th Amendment the court would intend to resolve practical difficulties and not to destroy everything.
“We have to settle the problems and will welcome Senator Raza Rabbani (chairman of the parliamentary committee which drafted the 18th Amendment) by fixing a time to come and answer queries of the court, for he is also a lawyer,” the chief justice observed.
“We will seek assistance from everyone, we are all citizens of the same country.”
The chief justice made the observation when Justice Tassadduq Hussain Jillani asked Attorney General Maulvi Anwarul Haq to get the opinion of the parliamentary commission on implementation of the 18th Amendment on apprehensions expressed by the bench so that all its questions were answered in the government’s reply to 21 petitions challenging different aspects of the amendment, including appointment of superior court judges under Article 175-A of the Constitution.
The court asked a number of questions relating to the composition of the judicial commission, veto power for the eight-member parliamentary committee on the nomination made by the JC of a certain person to be appointed as judge and the presence of a retired judge in the commission.
“These issues must have been settled had the parliament debated threadbare. What we are discussing is within the domain of parliament and, therefore, should have been addressed there,” Justice Jawwad S. Khawaja said, adding: “At the time of its implementation many challenges will come to courts.”
Hamid Khan, the counsel for different bar associations, objected to the inclusion of the law minister and attorney general in the judicial commission and argued that their presence militated against the cherished concept of independence of the judiciary and separation of the judiciary from the executive. The counsel is being assisted by Advocate Waqar Rana.
Justice Asif Saeed Khan Khosa said he wondered how the two officers who did not hold the public office of a permanent nature could be consulted for a post of a permanent nature when the AG served until the pleasure of the president.
At this Justice Jawwad S. Khawaja recalled how an apex court bench had faced a situation similar to a game of musical chair for six-and-a-half months when anyone asked by it to appear and justify non-implementation of the NRO verdict either resigned or was given a different assignment.
The chief justice was concerned about the secrecy aspect and said that like judges federal ministers were also under oath not to divulge the outcome of consultations, but the AG was not bound under any oath not to discuss credentials of a person being discussed by the judicial commission for his elevation as judge. “Same is the case with a retired judge who will also not be under any oath. These are practical difficulties,” he observed.
Hamid Khan said his clients would be happy if the composition of the commission was changed by removing the law minister and attorney general.
“But the government’s point of view will be absent if they are removed from the commission,” Justice Khosa said.
Justice Khalilur Rehman Ramday wondered what purpose a retired judge would serve as a member of the commission because he would not know the antecedents of an advocate for his appointment as judge after years of retirement.
Hamid Khan said that inclusion of a retired judge was suggested by PML-N chief Nawaz Sharif during a meting with the Supreme Court Bar Association president. Mr Sharif thought it would give judicial members of the commission an upper hand in the event of a deadlock. At this, Justice Ramday said the policy of appeasement should end, adding that the AG would be a better choice then because he belonged to the profession and also chairman of the Pakistan Bar Council.
About PBC’s representation in the commission, Hamid Khan said the purpose was to inform the commission about the history of a nominee because in the past several judges had been appointed although criminal cases were pending against them. “The PBC is a very important structure and part of the judiciary,” he said.
“If you (Hamid Khan) are saying that the PBC representative will be advancing instructions of the council then the same principle applies to the law minister and the AG who will be representing the government and the president, respectively,” Justice Khosa said, adding: “When you talk of stakeholders then the people of Pakistan are the biggest stakeholders who are being represented through the parliamentary committee.”
The chief justice observed: “We should appreciate that the judiciary survived many a situation it confronted in the past, like martial laws and the Nov 3, 2007, emergency. Is there any country which confronted similar situation, except India that faced emergency once?”
Justice Khosa reminded Hamid Khan that even if the court struck down Article 175-A of the Constitution it could not revive the old system of appointment of judges which had already been repealed.
Justice Saqib Nisar recalled that even the Al-Jihad Trust case which introduced the concept of consultation between the executive and the chief justice for appointment of judges was not followed by the judiciary itself.
Hamid Khan concluded his arguments by saying that democracy always flourished in countries where independence of the judiciary was ensured.