ISLAMABAD: The Senate is set to debate on Monday the crucial issue of the appointment of judges in the superior courts on a motion moved by PPP Senator Farhatullah Babar.
It will be for the first time that a full house will be debating the issue since parliament was given a role through the 18th Amendment in the appointment of judges through a Parliamentary Committee with equal representation of the government and opposition from both the National Assembly and the Senate.
Voices have been raised in parliament, particularly by legislators from the PPP and ANP, complaining about ineffectiveness of the committee in the nomination process.
Besides parliament, the lawyers’ bodies have also shown their reservations over the ongoing process of appointments.
The vice chairman of the Pakistan Bar Council (PBC), Qalbe Hassan, said the lawyers’ bodies wanted more representation of the bar in the Judicial Commission (JC) through another amendment to the constitution.
Moreover, he added, the PBC planned to file a petition seeking review of all the appointments recently made by the JC in which the judges, particularly the chief justice, were playing a dominant role.
Talking to Dawn, Senator Babar said that besides the Parliamentary Committee, the president and the prime minister also had no role in the appointment of judges. He said President Asif Ali Zardari had filed a constitutional reference before the Supreme Court seeking opinion on several questions of law, including the proper role of the JC, the Parliamentary Committee and the president in the appointment of judges.
The SC ruling, he said, had literally reduced the offices of the president and the prime minister to mere post offices.
He said another aspect of the matter was that nominations for appointment of judges could only be initiated by the chief justices of Pakistan and the high courts and no other member of the JC could do so.
Thus, he said, the law minister, the attorney general and the representative of PBC, who were members of the JC, could not float names.
He said the PBC had agitated the matter and demanded amendments to the rules to enable its representative to initiate names for the appointments.
For this reason, the PBC, the law minister and the attorney general had also recently declined to attend the meetings of the JC, he said.
Mr Babar, who is also the spokesman for President Zardari, said the presidential reference had sought opinion on whether any member of the JC could initiate names. The court said the rules provided for nominations to be initiated by the CJP or the CJs of high courts and the Federal Shariat Court, but did not give authoritative opinion on the substantive question of law.
Asked why he did not raise the issue when his party was in power, Mr Babar said any change in law or constitution required to be given some time to see its effectiveness or implications. He further said he was unable to raise the matter forcefully because of his association with the presidency. “Now I am about to be relieved from this position and would be in a position to raise the matter as a parliamentarian in an effective manner.
He said the manner of appointment of judges was central to the independence of the judiciary that raised a legitimate question whether the independence was best guaranteed by vesting the power in the hands of judge members of the JC alone or it needed to be diffused among the bench, bar, parliament, president and prime minister.
He said time had come for a parliamentary debate on the issue.
Besides Mr Babar, PPP Senator Saeed Ghani and Zahid Khan and Haji Adeel of the ANP recently raised the issue while speaking on points of order in the Senate.
Speaking on a point of order on Aug 22, Mr Babar had expressed concern over the SC’s order to the government to draft legislation in respect of the Federal Service Tribunal (FST) and get it passed by parliament.
He was of the view that the judiciary was independent but its independence was from the executive and it could not be stretched too far to mean independence from the law and the constitution.
The PPP leader said the time had come for parliament to rise and say no to any institution that sought to abridge its role and trespassed its domain against the letter and spirit of the constitution.