ISLAMABAD: The government informed the Supreme Court on Thursday that its decision on challenges to rejection of granting extension to six high court judges by an eight-member bipartisan Parliamentary Committee would prejudice the final outcome of the detailed judgment in the 18th Amendment case, which is yet to be announced.“This case may prejudice the outcome of the 18th Amendment (case),” Deputy Attorney General K.K. Agha said before the four-judge bench.
The court had taken up petitions moved by Advocate Munir Hussain Bhatti and the Sindh High Court Bar Association assailing the Parliamentary Committee's decision of declining the recommendations of the Judicial Commission (JC) to extend the service tenure of four senior additional judges of the Lahore High Court and two of the Sindh High Court.On Oct 21 last year, a 17-judge full bench after over four months of deliberations on petitions challenging 27 provisions of the 18th Amendment had referred to parliament the new mode of judges' appointment. Parliament reciprocated by adopting the 19th Amendment and incorporating most of the suggestions made by the Supreme Court in its interim order.
The DAG argued that Article 175-A of the Constitution had introduced an entirely new mechanism for appointment of judges under the 18th Amendment, which did not require a review by the Judicial Commission of decisions taken by the Parliamentary Committee (PC). The new system, he said, had changed the old one and it's time “we should be divorced from the requirement of the previous mechanism”.
“What we understood from your (DAG's) arguments is that the eight-member PC can trump recommendations of the 13-member JC comprising five senior members of country's entire superior judiciary,” Justice Jawwad S. Khwaja said, adding what the counsel had argued was that the Parliamentary Committee had primacy over decisions of the Judicial Commission.
Mr Agha said that reasons given by the Parliamentary Committee for not accepting the Judicial Commission's recommendations were based on evaluations done by the chief justices of relevant high courts. Describing it as a legitimate source of information, he said the Parliamentary Committee had to rely on the opinion given by the chief justices who had made damaging observations about the professional competence and personal conduct of the judges who had been denied extension.
Referring to the Judicial Commission's recommendations forwarded to the Parliamentary Committee for final adoption to be notified on the orders of the president, he said these were silent on reasons why the chief justices, who were in the best position to know about the competence of their fellow judges, had been persuaded upon to change their mind.
“It is difficult to see how the judges who have been regarded as lacking knowledge of law and described to be discriminatory and prejudiced could meet the criterion of holding high judicial office,” Mr Agha insisted.
On the other hand, he said, the Parliamentary Committee being representative of people had fulfilled its constitutional obligation by declining to endorse the persons whom the chief justices of the respective high courts had described to be unfit to hold high judicial office, especially when it (PC) received no explanation from the Judicial Commission how the opinions of the chief justices had been overcome.
The DAG said the Parliamentary Committee was a valuable safety net to filter out unsuitable people from being appointed as judges. It had fully justified its role in the new system of judges' appointment under Article 175-A of the Constitution, he added.