ISLAMABAD: A Supreme Court judge wondered on Tuesday why there was so much distrust in politicians when they were the ones who had created the country, framed the sacred document called the Constitution and enacted laws that all followed.

“The politicians even agreed and passed the 19th Amendment on the proposals suggested by the Supreme Court in its Oct 21, 2010 guidelines in the mode of appointing superior court judges under Article 175-A of the Constitution,” observed Justice Asif Saeed Khosa, one of the judges on the 17-member full court.

The court is hearing a set of challenges to the 18th and 21st amendments, the appointment procedure of the superior court judges as well as the establishment of military courts to try hardened terrorists, respectively.

Know more: SC judge says Constitution has concept of basic structure

Justice Khosa’s observation came when, during the hearing, Justice Sheikh Azmat Saeed expressed the fear that a decisive authority of the political parties (parliamentary committee) over decisions taken by the judiciary (judicial commission) would encourage a kind of a quota system that would lead to a system where political parties would be agreeing on a share of judges of their own inclination.

This will lead to political parties having judicial wings like the militant wings that some parties have, the judge observed, adding that this was the kind of thing the court wanted to avoid.

At this, Justice Saqib Nisar asked senior counsel Hamid Khan, who is representing three district bar associations, whether this was his virtual argument.

“Somewhat, yes,” replied the counsel but was corrected by Justice Khosa when he explained that political parties cannot have judicial wings since they cannot nominate or field their candidates to become judges and especially when the apex court had already provided a corrective door in the shape of the Munir Bhatti case of 2011 by holding that the parliamentary committee will have to give sound reasons, which will again be open to judicial scrutiny, if it disapproves the recommendations of the judicial commission.

SC bench apprehensive about ‘binding’ all generations with decision on basic structure of constitution

Arguing against the concept of the parliamentary committee, inserted through Article 175-A of the Constitution under the 18th Amendment, Hamid Khan emphasised that most countries had kept parliamentarians out of the process of appointing judges since there always was a fear of these appointments becoming politicised. Even in the United Kingdom, which has a strong history and tradition with the parliamentary system, parliamentarians do not interfere, he insisted.

Can one parliament (by holding that the Constitution has a basic structure which cannot be touched) bind all future parliaments, asked Justice Khosa, recalling that one generation cannot bind another generation since every generation was a new nation.

“Can the dead bind the living,” quipped Justice Saqib Nisar.

Recalling the context of the parliamentary commission’s inception, Justice Khosa recalled that it was the consistent demand of the legal fraternity for parliamentary oversight of judges’ appointments. Resolutions adopted by the Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA) when Hamid Khan was its president called for this, while former chief justice Saeeduzzaman had also recommended a similar procedure.

The discussion then came into the public domain by becoming the subject of the Charter of Democracy, where two popular parties agreed on the new system. It was against the background of these sustained demands that parliament unanimously passed the 18th Amendment, Justice Khosa said.

Whatever the mechanism be, in this case the appointment of judges, the rationale should be to project honest, upright and independent judges who could contribute and endeavour for the betterment of the people, Justice Ejaz Afzal observed and then asked the counsel whether he believed that the current system of appointment of judges, evolved by parliament, has the potential to obstruct merit instead of advancing it.

Justice Ejaz also asked the counsel to convince the court that the committee impinges upon the independence of the judiciary, and then asked whether there was any need to strike down a constitutional amendment when the Supreme Court had already provided a mechanism in the Munir Bhatti case.

Can the constitutional amendment be annulled on hypothesis or mere conjecture, especially in the presence of the safeguard to protect the independence of judiciary?, the judge asked.

But Mr Hamid Khan argued that the outcome of the recent judicial appointments after the amendment has become more controversial that led to more friction in the bars which was not conducive to securing the independence of the judiciary.

“The creation of a new body like the parliamentary committee is a recipe for trouble and difficulty,” the counsel argued.

Chief Justice Nasirul Mulk, who was heading the full court, said every system has teething problems, which are resolved over time.

Published in Dawn, April 29th, 2015

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