Justice Khalilur Rehaman Ramday asked Advocate Waseem Sajjad, counsel for the federation when the latter resumed his arguments in favour of 18th Constitutional Amendment: "Don't you think you are insulting parliamentarians by inserting (Article 63-A) 'disqualification on ground of defection,' which expresses your lack of trust on them?"
Sajjad stated that it was meant to make members of a party loyal to the policies of a party. Justice Jawwad S. Khawaja observed that disagreement or difference of opinion was the essence of the parliamentary system. The court also questioned the empowerment of 'party head' to disqualify any member of political party including MPs meaning thereby: "By giving control of the entire Parliament to one person (party head), who is not necessarily member of the parliament, as a negation of parliamentary form of government."
Justice Javed Iqbal questioned the counsel whether the role of Prime Minister has been minimised or eliminated by constituting parliamentary committee for appointment of superior courts judges. "The role of PM has been reduced to minimise executive's interference," was the reply of Sajjad.
"It is negation of Article 7 (definition of State) and Article 48 (President to act on advice)," observed Chief Justice Iftikhar Muhammad Chaudhry. Sajjad stated that the Parliamentary committee under Article 175-A was a special committee; it consists of members of the parliament but is not constituted by the parliament.
Justice Ramday observed that it was a parliamentary oversight in case of judicial appointments that would also override the role of PM. The CJ questioned that in a parliamentary system of government President functions on the advice of PM, then how could the Parliamentary Committee send the recommendations directly to the President.
Justice Jawwad S. Khawaja observed that taking powers from the parliament and empowering people out of the parliament is a flawed approach and a disturbing trend. The parliamentary committee is a supra body which does not fit in our constitution, he added.
To have 'veto powers' for undoing the decision of judicial commission is something not understandable, observed Justice Mian Shakirullah Jan. Sajjad stated that it was a new system and would take time to establish its own mechanisms.
Justice Tariq Pervaz questioned: "If eight people can veto the decision of judicial commission then where is the independence of judiciary?" If this was the case, there was no need of judicial commission as the government and opposition (members of Parliamentary Committee) should have decided on their own the appointment of superior courts judges, observed Justice Ramday.
Justice Ramday gave reference to the meetings of Parliamentary Committee on Constitutional Reforms (PCCR) headed by Senator Raza Rabbani, that the committee had held its first meeting in June 2009 and after the passage of seven months (on January 15, 2010) Article 177 was brought in for discussion. It was deferred the same day due to absence of some members. Afterwards, on February 12, 2010, the PCCR went for composition of judicial commission and reached a final decision on February 23, 2010.
"You (federation) had spent almost nine months to discuss other affairs, however did not spend more than nine hours in deciding the issue of independence of judiciary and established judicial commission in the first meeting," observed Justice Ramday.
In response to the queries regarding Parliamentary Committee, Sajjad stated that it was a proposal of Charter of Democracy (CoD) so that the public representatives could have a say in the appointment of judges. The Chief Justice referred to a resolution passed by previous assembly in support of steps taken by former President Pervez Musharraf on November 3, 2007 and observed "it was also the will of people."
Sajjad stated that resolution did not represent the will of the people as it was not validated. "We appreciate the sitting parliament for not validating those unconstitutional steps, closing the doors for adventurism," observed the CJ. While concluding his arguments, Sajjad stated that either good or bad, the procedure regarding appointment of judges has been changed by the Parliament.
"Why are you arguing half-heartedly? You should have come up with a firm stance," the Chief Justice told the counsel. Meanwhile, Attorney General Maulvi Anwarul Haq placed on record 980 suggestions, received by the PCCR from the people. The court will resume hearing of this case on Tuesday.