ISLAMABAD A 17-judge full court of the Supreme Court reserved on Thursday its verdict after over four months of hearing on petitions challenging various aspects of the 18th Amendment to define and determine the exact contours of its authority of reviewing the mechanism approved by parliament for appointment of superior court judges.
“It is a great honour to hear this important case in the history of the country; we reserve the judgment to be announced soon in due course of time,” Chief Justice Iftikhar Mohammad Chaudhry announced after counsel for petitioners concluded their arguments.
The bench started hearing the petitions on May 24 and discussed threadbare all aspects of the amendment under challenge, especially the new mechanism for appointment of superior court judges introduced in Article 175-A which, according to the petitioners, impinged on the independence of judiciary.
A number of petitions also challenged the renaming of the NWFP as Khyber Pakhtunkhwa which, according to them, would result in dividing the national polity on linguistic and ethnic basis and deletion of Article 17(4) relating to elections in political parties and insertion of Article 63-A empowering heads of parties to have a final say in case of a defection in the party.
On Thursday, Justice Asif Saeed Khosa said he wondered whether the judges who had taken oath to protect and preserve the Constitution could derive strength and jurisdiction to intervene if the Constitution or any of its provision was under threat.
There was another dimension of this oath, Justice Tassaduq Hussain Jillani said and asked “Can't we intervene to protect the Constitution if a particular amendment is in violation of the oath we as judges have taken to preserve the Constitution as an organic whole.”
Justice Khalilur Rehman Ramday said “We judges cannot sit as silent onlookers if someone is committing suicide before us.”
Advocate Abdul Hafeez Pirzada referred to the Napoleonic code of law which obligated individuals to step forward in such cases or be ready to become guilty of murder.
He said the Supreme Court should interfere if it found that a violation could render the judiciary unable to function independently. He called upon the larger bench either to strike down Article 175-A of the Constitution or retain the provision entirely.
Justice Jawwad S. Khawaja said the chosen representatives could not go beyond the limit enunciated in the Constitution, adding that their function was different from that of state functionaries and parliament could not be a body which transcended the Constitution.
Citing Article 2A of the Constitution (Objectives Resolution to become substantive part of the Constitution), Justice Khawaja said that in his view sanctity of any amendment should be attached to the will of the people, and not to the will of any dictator.
Advocate Rasheed A. Razvi, representing a number of bar associations, suggested to the court to retain the concept of judicial commission under Article 175-A of the Constitution, but after deleting the presence of the law minister and the attorney general on it.
He said that if these offices were struck down the rest would survive. But Justice Ramday said this would not be a procedure to save the amendment but to butcher it.
Justice Khawaja observed that the court could not suggest whom to expel and whom to include because 're-engineering' was parliament's job.
The court could not barge into the limits of parliament because parliament was there to set right a constitutional amendment, he added.
