Confirmation by the Attorney General (AG) that the Prime Minister has 'no role' in appointments of superior courts' judges subsequent to the passage of the 18th Amendment, overshadowed Tuesday's proceedings as 17-member bench of the Supreme Court exclusively and deeply focused on its pros and cons.
Maulvi Anwarul Haq (AG) affirmed that the PM had no role in appointments of judges under the newly inserted Article 175A of the Constitution. He quoted Senator Raza Rabbani's speech, wherein he informed the National Assembly that Parliamentary Committee would perform the role of the PM. The AG's statement invited a barrage of questions from the bench headed by Chief Justice Iftikhar Muhammad Chaudhry. The court gave the officer time to reply to bench's queries.
Justice Sair Ali asked: "Do you contend that 175A replaces consultation with the Parliamentary Committee instead of the PM?" The CJ observed that being head of the government the PM must be in the picture. He asked: "What about Article 48 [President to act on advice of PM]?" Justice Mian Saqib Nisar observed that the Parliament had created exceptions and Article 175A was an exception to Article 48 of the Constitution. The AG agreed to the observation and said that the PM himself had voted for Article 175A.
Justice Khilji Arif questioned whether the Parliamentary Committee (PC) could approve a nomination without consulting the PM. "What are the powers of the President? To issue a notification on the recommendation of the Parliamentary Committee or reject any approved recommendation," asked Justice Sair Ali after highlighting the procedure whereby the PM would have no role in the process and all nominations, with recommendations of approval/rejection by the committee, would go to the President.
Justice Nisar observed that in earlier dispensation, the President had to accept the advice of the PM. "The President will accept the advice of the PC in the same fashion as he was bound to accept the advice of the PM," he added.
Justice Khalilur Rehman Ramday referred to Raza Rabbani's statement quoted earlier where he had said on the floor of the House that the committee would perform the same role that was previously performed by the PM. He posed a question to the AG: If the PM had 'no role' in the appointment of judges even prior to the passage of the amendment then what would be the function of the Parliamentary Committee?
He remarked: "The CJP, two senior judges of the apex court, AG, PM and President stand 'zero' in front of the Parliamentary Committee. This is what emerges from the reading of Article 175A." Justice Asif Saeed Khosa observed that all these officials held high office and they decided to appoint judges (through PC) on their own but the country belonged to the people.
"The judiciary's effort to minimise the role of the PM in their appointment through Al-Jihad Trust cases I and II (known as judges' case) is well known so why is the judiciary taking exception to the marginal role of the PM in judges' appointments subsequent to the amendment," Justice Khosa added. The PC would oversee recommendations of the Judicial Commission. However, all decisions taken by the PC are justiciable. Therefore, the matter would ultimately be decided by the judges who were overseen by the PC. Justice Ramday questioned: "What is this mockery?"
Addressing the AG, Justice Ramday observed that "you should have said in clear terms that you people [judges] are not trustworthy [in appointing judges]." "Let's be honest about things," Justice Ramady observed, adding if it was the will of the people then it was acceptable.
Justice Khawaja observed that people had no role in the appointment as members of the PC were not the chosen representatives as they would be selected by the leader of the house and the leader of the opposition. Justice Ramday observed that no other country has Article 63A (defection clause) where Senate appoints judges of superior courts. "We have always praised the Parliamentarians but they have said we are not trustworthy through the introduction of said provision," he added. The Chief Justice questioned the AG: "What harm is there in saying that our constitution has a basic structure?" The Attorney General will resume his arguments today (Wednesday).