ISLAMABAD: A judge of the Supreme Court said on Wednesday that the procedure for appointment of superior court judges before the 18th Amendment when the chief justice used to recommend judges might not be a perfect system, but giving a blank cheque to political parties under the new mode to politicise the judiciary would mean committing suicide.

“This does not mean to give a blank cheque to political parties to politicise the judiciary; otherwise it will mean committing a suicide,” observed Justice Sheikh Azmat Saeed, one of the members of a 17-judge full court hearing a set of petitions challenging the appointment procedure of superior court judges under the 18th Amendment and the establishment of military courts under the 21st Amendment to try hardened terrorists.

Take a look: SC judge says Constitution has concept of basic structure

Chief Justice Nasir-ul-Mulk said he believed that the executive, under the present system where the parliamentary committee (PC) approved elevation of judges as recommended by the judicial commission (JC), had no option but to accept the suggestions of the JC, while under the previous system, the executive had more role to play in the appointment procedure.

“Now the president is bound by the JC recommendations,” he said.

Justice Asif Saeed Khosa supported the bipartisan PC and observed that through Article 175-A under the 18th Amendment an attempt had been made to make the appointment procedure impartial and non-partisan on the basis of competence of judges.

He said the independence of judiciary might be one aspect, but down the ages allegations of partiality had been levelled in the appointment procedure. This led to introduction of the concept of parliamentary committee.

“The independence of judiciary is not the ultimate milestone, but securing justice is,” observed Justice Khosa.

Justice Mian Saqib Nisar said the people were the ultimate stakeholder in the appointment of judges.

Advocate Hamid Khan, representing a number of district bar associations, praised the usefulness of the 1973 Constitution – the first instrument after the dismemberment of Pakistan – and said that despite upheavals this document survived and even withstood 11 years of martial law under Ziaul Haq and nine years under Pervez Musharraf.

This was no small achievement, especially when even the dictators were afraid of abrogating this constitution, though they changed it according to their own needs, Hamid Khan added.

“This shows inherent strength of the constitution which had stood the test of time, continuity and our future,” the counsel said, adding: “If we change the basic structure of the constitution, we will enter a territory where we will not be sure where we may end up.”

Giving formulations to build his case, Mr Khan said the constitution was founded on certain norms and principles identified over the years with case laws recognised as republican form of governance based on democratic principles, where laws to govern the republic could not be made repugnant to the broad parameters of Islamic injunctions, as laid down in the Holy Quran and Sunnah. The power and authority of the state has to be exercised through the people.

He argued that the constitution divided the power among three organs of the state to help protect liberties, freedom and rights of people and each organ was obligated to exercise its power within the sphere prescribed under the constitution.

The separation of power among these organs was of paramount importance to ensure smooth functioning and working of the government and the constitution, the counsel said. To secure and protect the rights of people, the constitution recognises the system of check and balance. Therefore, he added, the power of judicial review conferred on the judiciary was a bulwark to check excesses and usurpation of the executive and the legislature.

In a parliamentary democratic system like in Pakistan, he said, the legislature and the executive could overlap. It is, therefore, imperative that the judiciary should be separated from the executive to ensure its independence.

The counsel argued that fundamental rights enumerated in part II of the constitution were sacrosanct and soul of the constitution and their protection and enforcement could only be guaranteed through an independent judiciary separated from other organs of the state.

Hamid Khan said the amending power of parliament in a written constitution was inherently limited and derivative where the power of the judiciary could not be taken away. The Supreme Court, through a number of cases, has overruled the ouster clauses earlier introduced by the legislature in the constitution to restrain the judiciary.

The counsel argued that insertion of the PC by way of Article 175A in the constitution was violative of the separation of power doctrine.

Published in Dawn, May 7th, 2015

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