Thursday, July 29, 2010
CJ says if their powers were restricted, any dictator could impose martial law again and the courts would be silent spectators

By Sohail Khan

ISLAMABAD: The Supreme Court (SC) on Wednesday blasted the government for amending the Constitution under the 18th Amendment with particular reference to clipping the powers of Chief Justice and not taking the litigants, major stakeholders, into confidence while forming the Judicial Commission for the appointment of judges.

The judges took strong exception to the way the institution of chief justice of Pakistan was targeted under the 18th Amendment while amending Article 175-A of the Constitution.

A 17-member full court, headed by Chief Justice Iftikhar Muhammad Chaudhry, was hearing identical petitions, challenging certain provisions of the 18th Amendment with particular reference to the formation of a judicial commission for appointment of judges of superior courts.

The chief justice said if their powers were restricted then tomorrow again any dictator would impose martial and courts would be silent spectators.

During the course of hearing, the court poured heated questions to the Federation’s counsel Wasim Sajjad as to what were the main reasons that compelled the government to change the century old process of consultation of the chief justice with regard to the appointment of judges in the superior courts.

When Justice Tassaduq Hussain Jilani asked Wasim Sajjad as to what was the main objective of amending Article 175-A, Wasim Sajjad said, “Yes, it does take away the powers of the chief justice”. Khalilur Rehman Ramday asked Wasim Sajjad as to what was the compelling need for changing the Constitution. “You have to give us the reason that the chief justice of Pakistan had made anything wrong,” Justice Ramday asked the counsel adding what was the flaw in the old system?

Wasim Sajjad replied that the amendment had the back of Parliament, lawyers etc. Justice Ramday said why the litigants, the main stakeholders, were not taken into confidence?”

“Parliament is not before us everyday, but we are having common litigants like Muhammad Din, Allah Dita etc, and they should have been taken into confidence while amending the sacred document.

Wasim Sajjad replied that the judicial commission has primacy in the process having chief justice with two senior judges of the apex court. Justice Ramday asked Wasim Sajjad to show him where was the demand of the people for amending the Constitution.”

He recalled that when he was deposed with other judges, one of his grandchild used to raise slogans for the restoration of the chief justice of Pakistan after watching TV footages. Justice Ramday said he told his grandchild that he was also deposed, but the child didn’t know it, but was aware of the CJ.

“What has been done in the 18th Amendment is destruction of the institution of the chief justice of Pakistan,” Justice Ramday observed.

Justice Saqib Nisar while quoting one Ijaz Batalwi said that a judge is known by the judgments he delivered and the chief justice is known by the appointments he made.

The court also took notice of its repeated directions, asking for the transcripts of nine-month deliberations of the parliamentary committee, which hammered out the 18th Constitution Amendment.

“At least I am feeling very annoyed now as our repeated directions were not taken into account regarding producing before the court more than 900 suggestions, given to the Parliamentary Committee for making amendment to the Constitution,” Justice Jawad S Khawaja observed.

He said the Constitution is a sacred document, asking the counsel as to whether they can amend the sacred document. “The people of this country were not involved while amending the Constitution and all of us were defending the rights of the people,” Justice Jawad S Khawaja added.

Justice Nasirul Mulk asked the learned counsel for the federation that there must be some discussion on the subject of amending Article 175-A, and if it was widely discussed then what suggestions were received by the Parliamentary Committee on the appointment of judges.

Justice Jawad S Khawaja while citing a bill that was introduced in February 1972 and adopted the same year in April was widely published in the official gazette after debating it; however, he said that 175-A is still missing in the official gazette.

“Still we don’t know about over 980 suggestions given by the public with regard to the 18th Amendment,” he added.

The chief justice again directed Attorney General for Pakistan Maulvi Anwarul Haq to submit before the court today (Thursday) details of the suggestions, given to the Parliamentary Committee, besides directing that copies of the suggestions should also be provided to the counsel for the petitioners.

“You can do it, Mr Attorney General, as it remains no more secret,” the chief justice remarked. Justice Khalilur Rehman Ramday observed that nothing could be hid from the court.

During the course of the hearing, Wasim Sajjad while submitting his formulations said that in any case without conceding the doctrine of basic structure as touchstone of amendability, Article 175-A has been validly enacted and has not affected the independence of judiciary or separation of powers.

He further submitted that judicial commissions for appointment of judges have also been established in other countries. At this, Justice Ramday said sometime you toured us of the world, and sometime you asked us not to cite example of the neighbouring country.

The counsel contended that Article 68 of the Constitution is not in conflict with Article 175-A.

Earlier, during the course of the proceedings, senior lawyer of the Supreme Court, Sahibazda Ahmed Raza Kasuri, requested the court to adjourn the proceedings in lieu of the tragic plane crash in the heart of Margalla hills, killing 152 people on board.

The court, however, reduced the hearing by half an hour and offered heartfelt grief over the loss of precious lives.

APP adds: Chief Justice Iftikhar Muhammad Chaudhry said that judicial powers to revisit decisions had blocked the way for illegal takeovers of government.

The CJ told the counsel for federation that in the past it happened that individuals took control of the governments overnight and the apex court validated their steps. But after revisiting Tikka Iqbal’s case, the judiciary had declared November 3 step as void and unconstitutional, he added.

He asked the counsel whether he wanted the apex court to restrict its judicial review powers which could enable a dictator to take control and disfigure the Constitution while the people would remain silent spectators?

He observed whenever a martial law was imposed, a presidential system had been introduced and the powers were grabbed by the president from a prime minister.

He said the judicial review jurisdiction was exercised for this purpose and to correct a wrong decision.