Chief Justice of Pakistan Iftikhar Muhammad Chaudhry has said independence of judiciary is vital pillar of the basic structure of constitution.
CJP gave these remarks while presiding over a 17-member larger bench of Supreme Court (SC) during the course of hearing of constitutional petitions seeking nullification of different clauses of the 18th amendment.
“Executive and legislative are the representatives of state. The independence of judiciary is a crucial pillar of the basic structure of constitution. The judiciary is outliving jerks it receives every day. Judiciary survived despite incidents of November, 3, 2007 and April, 13, 2010. 3 judges were expelled for two times in India but it has happened in Pakistan on several occasions”, CJP remarked.
Resuming his arguments Hamid Khan advocate pleaded that the element of consultation had been eliminated from 18th amendment with reference to appointment of judges. On the other hand the SC had made the consultation with the CJP mandatory in PCO judges case.
“In the new procedure for appointment of judges, no role has been given to the CJP and 150-year old tradition of mutual consultation has been done away with”, Justice Khalil ur Rehman Ramday observed.
“Judges are bound to keep the matters secret after they take the oath. On the other hand Attorney General does not take such oath in judicial commission. In July, 31 verdict., prime minister and chief minister were kept included in consultation process”, CJP remarked.
“If Attorney General (AG) and law minister are not made part of judicial commission, will it then be acceptable to you”, justice Tassadaq Hussain Jillani inquired from Hamid Khan.
If all the members of the commission are judges then there will be no objection over it”, Hamid Khan said. The definition of consultation was expunged from the constitution in the matter of appointment of judges. Nawaz Sharif had given the proposal for induction of retired judge so that the strength of judiciary could be increased, he added.
“What a retired judge knows about the professional capabilities of a new lawyer”, Justice Khalil ur Rehman Ramday inquired.
If any role is being given to the elected representatives of people through parliamentary committee then what objection you have”:, justice Asif Saeed Khosa remarked.
Hamid Khan contended both the AG and law minister are from executive side, therefore, they be excluded from commission. 4 Attorney Generals had been replaced during the last two years, he added.
“We are facing much difficulties as whenever court summons AG, he resigns”, justice Jawad S Khawaja observed.
“What will the position of a chief justice of a high court if he is to be inducted in the SC and his name is rejected by the parliamentary committee. Will he then remain chief justice of high court for ever. If committee vetoes his nomination with two thirds majority then it will mean that the public representatives have rejected him as a judge”, justice Asif Saeed Khosa remarked.
“If elections don’t take place within 90 days then where this committee will stand and how the job will be done”, CJP remarked.
This was key l point where no focus had been placed, Hamid Khan said The previous assembly was dissolved on November, 14, 2007 and elections were held on February , 18, 2008 while government was installed in April. No opposition leader could be nominated even one year after Election-2002, he pointed out. The CJP asked AG and counsel for federation to note these points.
“What debate we are making this should have taken place in parliament”, justice Jawad S Khawaja remarked.
The protection of fundamental human rights depended on independent judiciary. If there would be a political judiciary then it could never be guarantor of fundamental rights of the people, Hamid Khan contended.
“If commission nominates me and I will meet members of committee and ask them to appoint me assuring them that I am their man and this way the whole process will be turned into a political one”, justice Tariq Pervez remarked.
The flaws prevailing in judicial commission can be removed by formulating rules and regulations, Hamid Khan said.
Hamid Khan completed his arguments on the constitutional petition filed by Supreme Court Bar. Chairman Wattan Party barrister Zafarullah will start his arguments today.