Chief Law Officer of Punjab on Thursday adopted a different stand from that of his government before the apex court bench hearing 18th Amendment case and opposed several provisions of the amendment including proposed procedure for the appointment of superior courts judges by the insertion of Article 175A in the Constitution.
When appeared before the 17-judge bench headed by Chief Justice Iftikhar Muhammad Chaudhry, Advocate General Punjab Khawaja Haris said his stand was different from Advocate Shahid Hamid, counsel for Punjab government. "I oppose Article 175A (procedure for appointment of superior courts judges), Article 63A (defection clause) and Article 17(4) regarding intra-party elections," he added.
Whereas, Shahid Hamid had defended each and every provision of the amendment saying striking down of any clause would tantamount to denying sovereignty of the parliament. Meanwhile, the court directed Attorney General Maulvi Anwarul Haq to seek instructions from the concerned authorities over Punjab government's proposal that the issue of appointment of judges at Balochistan High Court (BHC) can be addressed in a joint sitting of the parliament. Chief Justice Iftikhar Muhammad Chaudhry directed the Attorney General to contact the concerned authorities and inform the court about government's plan on Monday, August 23 (next date of hearing).
Earlier, the Supreme Court after highlighting the looming threat of 'constitutional breakdown' in Balochistan as all four of its additional judges would retire on September 5. The court had cautioned the government to pre-empt the situation. However, after seeking instructions, the AG told the bench that the government was well aware of the situation and the Prime Minister had held a meeting but did not come up with any decision since the government was waiting for court decision on petitions challenging the amendment.
While asking the government for addressing the issue that court had made it clear that it had the option of passing a judicial order but it wanted the parliament to address the issue. Advocate Shahid Hamid, had suggested that the solution of Balochistan issue was in Article 267-A of the Constitution.
Article 267-A reads: "Power to remove difficulties.- (1) If any difficulty arises in giving effect to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, hereinafter in this Article referred as the Act, or for bringing the provisions of the Act into effective operation, the matter shall be laid before both Houses in a joint sitting which may by a resolution direct that the provisions of the Act shall, during such period as may be specified in the resolution, have effect, subject to such adaptations, whether by way of modification, addition or omission, as may be deemed necessary or expedient: Provided that this power shall be available for a period of one year from the commencement of the Act."
At the onset of Thursday's proceedings, Punjab government's attorney Advocate Shahid Hamid concluded his arguments saying 'striking down of any provision of the 18th Amendment would tantamount to denying the sovereignty of the Parliament'. Instead of rejecting any portion of the amendment, the court can send the matter back to the parliament for a review, Shahid Hamid said. Defending the new procedure for the appointment of superior courts judges, he said that it was devised in line with the Beijing Accord of 1997 on which 19 chief justices including Chief Justice of Pakistan had signed.
Shahid Hamid said that the Parliamentary Committee, envisaged by Article 175A of the Constitution, can be formed within one day. The new system had brought an end to all those excuses used to justify delay in appointments of superior courts judges, he added.
"How come the Parliamentary committee be formed in one day when National Accountability Bureau (NAB) chairman was not appointed in last three months and same was the case with revamping of Election Commission in line with 18th Amendment," observed Justice Khalilur Rehman Ramday.
"The Attorney General had told us that NAB chairman would be appointed in a few days but even after the lapse of one month it did not happen," observed Chief Justice Iftikhar Muhammad Chaudhry. Justice Mian Shakirullah Jan observed that debate over the conduct of superior courts judges by the Parliamentary Committee would be violation to Article 68 of the Constitution. The Constitution does not allow the parliament to discuss conduct of the judges, he added.
Afterwards, Khawaja Haris stated that the constitution had a 'basic structure', which could be defined as constituting those essential/fundamental/salient features of the Constitution, which give it its specific identity or distinctive personality.
"In fact, the basic features of our Constitution should read (i) federalism (ii) parliamentary form of government (iii) fundamental rights, with special emphasis on rights of minorities and (iv) independence of judiciary, all blended with Islamic provisions," said Khawaja Haris, adding that Article 175A impinges upon the independence of judiciary.
While opposing the new procedure laid down for appointment of superior courts judges (Article 175A), Khawaja Haris said that eversince the promulgation of 1973 Constitution, even the worst of the dictators have not dared to temper with Article 177 (Appointment of Supreme Court judges) and Article 193 (Appointment of High Court judges). Later, the court adjourned the matter for August 23.
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