Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry has observed Prime Minister is the most powerful functionary following the passage of 18th amendment but he has no role in the appointment of judges and this way the prevailing system will transform from parliamentary to presidential.
CJP made this observation while presiding over 17-member larger bench of SC during the course of hearing of identical constitutional petitions challenging certain clauses of 18th amendment.
CJP remarked Judicial Commission (JC) had edge over judicial commission in the new procedure laid down for the appointment of judges as it could reject the nominees of JC and was not bound to give the reason for rejection of the names.
Counsel for federation Waseem Sajjad while giving arguments on article 75 said the nominees of judicial commission would be sent to president through prime minister subject to approval of parliamentary committee.
“This way the role of the prime minister stands reduced to the role of a post office”, justice Asif Saeed Khosa remarked.
“It was not binding on the committee to give the reason for rejecting the nominees of judicial commission. On the other hand president gave solid reasons in writing in the old procedure”, Justice Saqib Nisar observed.
“To my personal opinion parliamentary committee should give reasons for rejecting the names in writing”,. Waseem Sajjad said.
“You should not give your personal opinion but inform the court about the stance of federation in this regard”, justice Anwar Zaheer Jamali remarked.
“I can inform the court after getting instructions from the federation but the matter of legal justification is difficult one”, Waseem Sajjad contended.
“The constitutional matters are disposed of on legal points rather than compromises. We have not to see the statements of the parties but have to make interpretation in consonance with the constitution”, CJP observed.
Continuing his arguments, Waseem Sajjad said law minister in fact was representative of prime minister in the committee.
Law minister will be included in the committee by virtue of his office rather than as representative of the prime minister”, justice Khalil ur Ramday remarked.
This committee is a special committee and it be seen in this perspective, Waseem Sajjad submitted.
“ No matter in the constitution is seen specially but it is seen collectively”, CJP observed. The judge who will be inducted with the approval of all the institutions will be more independent” Waseem Sajjad said.
“Such members will be indebted to the persons who will nominate them and they will have no independent position”, justice Asif Saeed Khosa observed.
“You should record the statement in the court that the tenure of the members will be equal to the tenure of house”, Justice Anwar Zaheer Jamali remarked.
“This is my personal interpretation, the court can make its own interpretation if it wills so”, Waseem Sajjad submitted.
“You are fighting on two fronts. On some question you present the stance of federation and to some question you say it is your personal opinion. Whenever you are asked about government stance you give your personal opinion and when you are asked about your personal opinion you present the federation stance”, Justice Jamali observed.
Justice Javed Iqbal remarked the principle of merit was ignored in the appointment of judges in the past.
“I am the only member of my family who is associated with this profession. My sons have not to become judges nor the relatives of my fellow judges have to become the judges. We talk of the country and the institutions. The fact is there that when no trust move is tabled the members of assembly are hidden in Changa Manga and Murree. The appointment of judges was challenged in 1989 and the deadlock was created. But agreement was reached later. There should be a workable solution”, the CJP remarked.
“We can not accept every thing on assumptions. Ministries have to be offered to win support. The executive has been exercising its influence in connection with appointment of judges. Now parliamentary committee will demand its share”, he further remarked.
“There is no clarification therein what will be the criterion of the committee to adjudge the ability of the judge. Commission will look into the professional matters. What will be the jurisdiction of committee? Bar is imposed on discussing the conduct of judges under article 68. Who will ensure its implementation”, CJP observed.
Waseem Sajjad said the chairman of committee will ensure its implementation. “There is no chairman of the committee”, CJP observed.
If any name is recommended by the commission for the appointment of the chief justice of any high court and committee rejects it then what will be the position of chief justice. Will he retain his office after being rejected despite the fact that his tenure of service is yet to be completed ”, Justice Saqib Nisar observed.
This chief justice should then leave his office”, justice Asif Saeed Khosa remarked. The commission should also resign if it happens so”, justice Tariq Pervez remarked.
Why this is being assumed that such situation will be created in the presence of elected institutions, Waseem Sajjad said.
“We are working on assumptions since the last 62 years. We will have to evolve solid principles now”, CJP remarked.
The CJP asked Waseem Sajjad he should explain in the court that if the president rejects the summary of parliamentary committee by invoking article 48(1) then what will happen in this situation.
The hearing of the case has been adjourned till August, 2.