ISLAMABAD: The Supreme Court hearing on challenges to the 18th Amendment on Monday provided an opportunity to peep into judges’ minds when one member of the full court acknowledged that there was a concept of basic structure theory in the 1973 Constitution.

“The very recourse to the 1973 Constitution shows a structure which may be called a basic structure,” observed Justice Ejaz Afzal.

He said that although no provision of the Constitution provided for safeguards, this structure was inviolable and should be protected and kept intact, especially when the people as well as the parliament had also recognised the basic structure.

Also read: Asma says 21st amendment suicide attack on parliament

The 17-judge full court had taken up a set of petitions challenging the procedure of appointment of superior court judges under the 18th Amendment and establishment of military courts under the 21st Amendment to try hardened terrorists.

On Feb 12, the Supreme Court had decided to take up a pending case relating to the 18th Amendment, along with the current petitions against the 21st Amendment.

Know more: 17-judge bench to decide fate of 18th, 21st amendments

The 18th Amendment case has been pending with the Supreme Court for four years, although a full court headed by then chief justice Iftikhar Mohammad Chaudhry had on Oct 21, 2010, issued an order suggesting new guidelines in the procedure for appointment of superior court judges under Article 175-A of the Constitution.

Full court hears petitions against 18th, 21st Amendments

Later parliament brought a new law through the 19th Amendment and accepted almost all proposals made by the Supreme Court and incorporated them into the Constitution. Citing an example of the United States where Senate appoints the judges of superior courts, Justice Asif Saeed Khosa, a member of the full court, asked could “we say that the independence of judiciary in America is not secured”.

He then hastened to add that it was the value and, not the structure, which was the key. He said the procedure for appointment of judges had been changed by giving it to many hands instead of one hand which ultimately led to the insertion of Article 175-A in the Constitution under which the concept of judicial commission as well as the parliamentary committee had been introduced.

Referring to a report of the Parliamentary Committee on Constitutional Reforms, headed by Raza Rabbani, which had drafted the 18th Amendment, Justice Khosa observed that for the first time recommendations of the committee in black and white had recognised the concept of basic structure.

Justice Sheikh Azmat Saeed said the US Senate not only appointed the judges but also heads of the armed forces, attorney general and bureaucrats and asked whether “we should also adopt the same procedure”.

“One cannot pick and choose,” he observed.

Referring to the recent appointment of Loretta Lynch as Attorney General of the US by the Obama administration, Justice Jawwad S. Khawaja said a woman of colour had been appointed after a long hearing in the Senate.

During the hearing, Hamid Khan, representing a number of district bar associations, said he was satisfied with re-composition of the judicial commission which appointed the judges under the 19th Amendment, but he would contest to the extent of the existence of the parliamentary committee which approved the recommendations of the judicial commission.

The chief justice asked him if he wanted complete exclusion of the parliamentary committee from the appointment procedure of judges. And if the answer is in the affirmative, the counsel should establish how the committee violates the independence of judiciary and how a constitutional amendment can be struck by the apex court.

Hamid Khan argued that the independence of judiciary and the concept of separation of power were two salient features of the basic structure of the Constitution and if they were hit any constitutional amendment could be struck down by the Supreme Court.

On Monday, Akram Sheikh and Asma Jehangir withdrew petitions filed on behalf of Nadeem Ahmed and the Supreme Court Bar Association.

Published in Dawn, April 28th, 2015

On a mobile phone? Get the Dawn Mobile App: Apple Store | Google Play