The CJ made these remarks while asking the Attorney General of Pakistan to note down all questions raised by the petitioners with a view to enabling Senator Raza Rabbani to address those issues when he comes to attend the court. In addition, Justice Tassadaq Jillani directed the AG to bring all those queries raised by the petitioner to the notice of the implementation commission as well.
Earlier, Hamid Khan, the counsel for Supreme Court Bar Association, resumed his arguments and said that the setting up of judicial commission and parliamentary committee for the appointment of superior courts judges under Article 175-A of the constitution was extremely complex and cumbersome and hence impractical and unworkable.
Justice Mian Shakirullah Jan asked the counsel whether a constitutional amendment can be struck down because of a difficulty in its implementation. Replying to the query, Khan said that this is not the sole reason for his challenge, as it is also against the independence of judiciary because the intricacies in the appointment of judges will not let the commission work smoothly.
All these clauses (regarding appointment of judges) militate against the independence of judiciary and its separation from the executive as envisaged under the basic features of the constitution, he added. "No" was the reply of Khan when Justice Sair Ali asked whether there was any difference between the basic structure and the salient features of the constitution.
While deliberating upon the procedure laid down by Article 175-A for judges' appointment, he said that a successful candidate would have to secure a three-fourths majority or 6 votes out of the 8-member parliamentary committee. Similarly, a veto against the nomination of any candidate would require the assent of 6 members. In such a situation, a candidate cannot be appointed even if 5 out of the 8-member committee support him.
In order to elaborate his point he referred to Proviso-12 of Article 175-A that reads "The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed: Provided that the Committee may not confirm the nomination by three-fourth majority of its total membership within the said period, in which case the Commission shall send another nomination."
Justice Asif Saeed Khosa observed that a candidate having 4-4 or 3-5 votes from the parliamentary committee would be dropped as it would require six votes for the appointment. Therefore, the veto becomes irrelevant and redundant, hence this proviso is redundant.
Joining the discussion on workability of parliamentary committee, Justice Khalilur Rehman Ramday asked: "what if a chief justice of a high court is nominated for elevation in the Supreme Court and the judicial commission approves the name but the parliamentary committee does not and five out of its eight members reject the nomination. Even after such condemnation, the nominee would remain the Chief Justice of the high court till he reaches superannuation."
In such a circumstance, the nominees would not sit idle to avoid veto against their appointment and would contact the members of the parliamentary committee, Justice Ramday added. Justice Asif Saeed Khosa asked: "What would happen if the assembly is dissolved, would the members of the committee remain intact and what if the elections do not take place in the stipulated period of 90 days?"
Justice Ramday remarked that even after the holding of elections the process of formation of parliamentary committee would take time as happened with the assembly in 2002 when it took over a year to nominate its leader of the opposition. Justice Khosa posed another question to Hamid Khan that if court strikes down the Article 175-A, it will not lead to revival of earlier system because that has been separately repealed and the said article is not a replacement but an insertion.
"Yes" was the answer of Khan when Justice Saqib Nisar asked him whether he wanted to say that the consultation process (procedure for appointment of superior courts judges') as envisaged by Article 260 of the Constitution will be revived through the court order. Justice Jawwad S. Khawaja promptly observed that it was the job of the parliament to look into all such possibilities. Had there been such detailed debate on the subject in the Parliament there would have not been any problem, he added.
At that the court asked the AG to note down all these queries and inform Senator Raza Rabbani so that he could assist the court on this matter. Khan said that state is represented by the executive and legislature whereas the citizen is represented by the judiciary because judiciary protects fundamental rights.
The protection and enforcement of fundamental rights are dependent upon the independence of judiciary and a politicised judiciary cannot be the guardian of fundamental rights under the constitution, he added. Khan said that political judiciary would emerge as a result of Article 175-A and it can be rectified if the judicial commission is purged of the Attorney General and the Law Minister. The court also pondered over peoples' reluctance to go through the procedure laid down by the Article 175-A if parliamentary committee rejects nominations of the judicial commission headed by the Chief Justice of Pakistan.
Justice Anwar Zaheer Jamali observed that in the last 36 years Sindh High Court had functioned to its full strength only for four to six months. It happened during the ideal condition when CJP had all powers of appointing superior courts judges. Concluding his arguments, Khan said that it is a lesson of history that democracy flourishes in a country where there is independence of judiciary and one of the reasons for the survival of democracy in India is the presence of a strong judiciary in that country.