June 24, 2008	Tuesday	Jamadi-us-Sani 19, 1429

ISLAMABAD, June 23: Rejecting the proposed 18th Constitution Amendment package, the Pakistan Bar Council (PBC) has said that if approved it would affect the independence of judiciary on which even parliament was not competent to legislate.

A meeting of the PBC’s executive committee held here on Sunday called upon the National Assembly members and senators to reject proposals relating to the judiciary.

The meeting, presided over by PBC chairman Rasheed A. Razvi, called upon the civil society and all political parties to resist attempts aimed at curbing the independence of judiciary.

“We are of the considered view that restoration of the Nov 2 judiciary should be done in accordance with the March 9 Marri Declaration through a resolution of the National Assembly followed by an executive order,” the PBC resolution said.

“Restoration of judges should have no connection with the amendment to the Constitution,” it said, adding the Constitution should be amended in accordance with the consistent stand of lawyers for restoring the Constitution to the position of Oct 12, 1999.

The package, it said, was being proposed to delay the restoration of judges who declined to take the oath under Provisional Constitution Order (PCO), adding that these amendments had been devised to maintain status quo and ‘black deeds of General Pervez Musharraf’ undertaken during the emergency period.

The proposed amendments relating to the judiciary in the package also violate the doctrine of ‘independence of judiciary’.

On substitution of Article 6 (high treason), it said, the package is aimed at protecting those judges who took oath under the PCO. The terms ‘aiding’ and ‘abetting’ used in the present article are sufficient to bring within its framework all those judges, parliamentarians and officials who have aided and abetted with General Musharraf on Nov 3, 2007 and thereafter.

A resolution passed by the meeting said it was shocking to note that the authority for appointment of attorney-general and advocate-general had been conferred on the federal government and provincial governments, respectively, and the discretion of the president and governors to appoint these law officers had been withdrawn thus making these offices a case of political appointments.

The executive committee also condemned the proposed amendments to Article 177 (appointment of Supreme Court judges) and said that the introduction of Article 177-A to set up a ‘commission’ to be headed by the Chief Justice of Pakistan and comprising all chief justices of the provinces to decide their own promotion to the Supreme Court was against the principles of appointment and promotion of superior court judges established from time to time, especially in the Al-Jihad (known as Judges case) and Malik Asad Ali cases.

It is consistent view of the PBC that all appointments to the superior courts should be made through National Judicial Commission where bar representation had also been suggested. The idea of federal law minister leading the commission for the appointment of CJP is violative of the principle of ‘separation of powers.’

It is a matter of record that the entire legal community had strongly opposed enhancement of retiring age of the Supreme Court and High Court Judges made through the Legal Frame Work Order, 2002 and it was due to their struggle that the same was withdrawn vide 17th Amendment.

Now, once again amendments have been proposed to enhance the retiring age of the judges, which amounts to awarding bonus to the PCO judges.

On the introduction of Article 193-A (appointment of high court judges), the PBC said the appointment of high court judges had been ‘politicised’ by inclusion of the federal and provincial law ministers in the commission.

The meeting condemned the substitution of Article 209 (Supreme Judicial Council) by proposing a Judicial Commission, which will comprise ‘non-politicised’ retired judges.

Strangely, this term has not been defined in the so-called proposed 18th amendment.

The proposal that the president would be authorised to send any judge or chief justice on ‘forced leave’ for an indefinite period amounts to making the judiciary subservient to the executive.

The proposed article 209 in 18th Amendment is capable of being misused as a weapon of exploitation against those judges who are independent and do not succumb to government pressure. Nearly all the provisions of the Constitution relating to the judiciary have been defaced and mutilated in order to serve the purpose of the ruling junta.

On suo motu jurisdiction of the Supreme Court, it is painful to note that it is being curtailed by amending Article 184 of the Constitution, which is a calculated attempt to take away and curtail the powers of the apex court.

It is matter of record that most historical judgments of the Supreme Court were delivered in exercise of jurisdiction under Article 184(3).

On several occasions, the late PPP leader Benazir Bhutto had also invoked the said provision of the Constitution. Thus, the PBC rejects all such proposals in the package which relate to the judiciary as the same being mala fide attempt on the part of present regime.