“Even if there are deficiencies, it is for the people to point out and determine it ultimately,” Justice Jawwad S. Khawaja observed in response to arguments put forward by Advocate Mohammad Akram Shaikh, the counsel for petitioner Nadeem Ahmed.
Advocate Shaikh said that the amendment to Article 175 (method of appointing superior court judges) under the 18th Amendment militated against the very ideals of the independence of judiciary.
“Even we as judges of the Supreme Court are sitting here as representatives of the will of the people and only because of their will this institution was established,” Justice Khawaja observed.
“Don't brand politicians good or bad,” Justice Asif Saeed Khan Khosa said. Pointing towards the imposing picture of Quaid-i-Azam Mohammad Ali Jinnah hanging above the chief justice, the judge said the picture “you see was a politician who created this country and the Constitution we have now was also given by the politicians”.
Surely parliament could make any amendment to the Constitution, Justice Khosa said. He asked the counsel to establish how Article 175-A destroyed the cherished goal of the independence of judiciary.
Chief Justice Iftikhar Mohammad Chaudhry observed that there should be no threat to the democratic system and it should be allowed to work smoothly, but he wondered about the addition of Clause 2-A to Article 6 of the Constitution (high treason not to be validated by any court, including the Supreme Court or high court).
The CJ said that after the July 31, 2009, verdict judges had adopted a code of conduct under which they would refrain from rendering any support to any authority that came by adopting extra-constitutional mode.
“The judiciary has to be independent, come what may,” the chief justice observed.
But Justice Khalilur Rehman Ramday regretted that the judiciary had rendered sacrifices, judges faced detention and hunger along with their children and had to let go numerous competent brother judges by way of the July 31 verdict (for taking oath under the PCO) only to save the democratic system. But, he said, the hands of the same judiciary were being tied.
“Who will be responsible if the system itself is bent upon committing suicide,” Justice Ramday observed. “We give orders but no one bothers to get it implemented.”
The judge observed that a new provision of fair trial had been added through the amendment, but “can you imagine fair trial without an honest investigation and prosecution”.
Akram Sheikh pleaded that the 27-member Parliamentary Committee on Constitutional Reforms headed by Senator Raza Rabbani had been constituted as a follow-up of the annual speech of President Asif Ali Zardari to the joint sitting of parliament, but there was no categorical mention of amending Article 175 of the Constitution.
Justice Nasirul Mulk, however, reminded the counsel that the Charter of Democracy signed by two major political parties had a provision for the setting up of the judicial commission and parliamentary committee for the appointment of superior court judges. Akram Sheikh argued that before bringing the 18th Amendment parliament did not bother to get input from any quarter and did not even consult the Law and Justice Commission of Pakistan or National Judicial Policy Making Committee.
He recalled that Senator Rabbani had in 1996 presented in parliament a resolution seeking to set up a 33-member committee for sending a non-pliable judge on forced leave or home permanently if a simple majority of the committee decided to do so.
One of the allegations against the second PPP government after its dismissal in 1996 was that it tried to militate against the judiciary, the counsel said.
When asked why was the judiciary not declared the third pillar of the state in the Constitution, Akram Sheikh said that its role was different from the governance because it had to oversee the working of the federation and perform multiple roles like settling disputes between federating units, man and the state and the man and man, in addition to its advisory role.
Justice Khawaja observed that for the first time in the country's history the judiciary had demonstrated that it would not allow in future any praetorian intervention or any deviation from the Constitution. He sought the assistance of the counsel on the point whether parliament had consciously deliberated on changing the mode of appointment of judges.
Justice Tariq Pervez said that except for the lawyer to be nominated by the Pakistan Bar Council no tenure has been fixed for any member of the judicial commission. The judge asked about the criterion for filling the vacant seat of a judge if the assembly was dissolved and new elections were three months away.
“What will happen if there is a criminal charge against the law minister who is also member of the judicial commission,” the judge asked.
“Suppose the term of an additional judge of a high court expires, but the assembly is not there, then what,” Justice Ramday quipped.