News
Thursday, September 02, 2010
New mechanism for judges’ appointment doesn’t seem applicable: SC
* Court says Article 175-A inserted in 18th Amend without ‘adequate homework’
* Judicial commission will be powerless, parliamentary body will have real power
By Masood Rehman
ISLAMABAD: The Supreme Court on Wednesday observed that the new mechanism for appointment of superior court judges “does not seem applicable and Article 175-A was inserted in the 18th Amendment without doing adequate homework”.
The observations were made as the 17-member SC bench, headed by Chief Justice Iftikhar Muhammad Chaudhry, continued hearing the identical petitions against certain provisions of the 18th Amendment with particular reference to the formation of a judicial commission for appointment of superior court judges.
During Wednesday’s hearing, Justice Javed Iqbal said, “No system itself is good or bad, but it depends on the people who run it.” He said the new mode for judges’ appointment was also not in consonance with the Charter of Democracy (CoD). He said it had been mentioned in the CoD that a committee consisting of eminent jurists, legal experts and politicians would be formed to discuss the issue of judges’ appointment. “Only after the commission presents its report will the final decision over the method to appoint judges will be taken. However, this has not happened,” he said.
Attorney General (AG) Maulvi Anwarul Haq said that the new procedure was not operational yet. “However, with the passage of time, all the flaws in it will be removed,” he said.
Justice Jawwad S Khawaja asked the AG whether parliament had “unfettered powers and can it make an amendment which infringes upon the independence of the judiciary”.
“Whether the judiciary has to defend and protect Article 239 only or does it have the responsibility of protecting the whole constitution. I have posed the same question to the federation counsels, including Wasim Sajjad, but nobody has responded,” Justice Khawaja said.
The AG replied that Article 239 should be read along with other articles of the constitution.
However, the chief justice inquired from the AG whether the term the ‘whole constitution’ included its preamble as well. “There is no judiciary other than the independent judiciary and it is also written in the preamble. The appointment of judges is one of the fundamentals of the independence of judiciary,” Haq said.
Justice Khalilur Rehman Ramday said the judicial commission, comprising the chief justice, two senior SC judges, a retired CJP or a judge of the apex court, the law minister and the attorney general, had in fact no real power. “All the power to nominate a judge of the superior courts rests with the parliamentary committee,” he observed.
Justice Tassadaq Hussain Jillani asked the AG whether the judicial commission could recommend the same name to the parliamentary committee, which it had already rejected and whether the second referral would be binding on the committee. The AG said that a nomination could not repeated.
Later the court adjourned the hearing for today (Thursday).
Courtesy www.dailytimes.com.pk