Heading a 17-judge bench of the apex court set up for the hearing of 18th Constitutional Amendment case, the Chief Justice remarked that the country had remained without parliament for two to 10-year stints, the chain which started in 1977 ended on August 18, 2008 (when former President Pervez Musharraf resigned from the office).
Justice Khalilur Rehman Ramday observed that the courts had given such decisions which did not touch powers of the parliament, and added that "what happened afterwards in the country is an open secret." Giving reference to the SC order of November 3, 2007 that restrained judges not to take oath under the PCO, Justice Ramday remarked: "that is how nations progress."
These observations from the bench came in response to an argument of Advocate Ibarhim Satti, the third member of the legal team engaged by the federation to defend the 18th Amendment. The counsel had argued that fourth, fifth and sixth amendments in the constitution were with respect to judiciary, however the courts did not strike them down. So far, the courts in Pakistan have never struck down any amendment, he added.
While defending the newly inserted Article 175-A of the Constitution that provides for a new procedure for the appointment of superior courts judges, Satti said that the pervious system was faulty and judges themselves had not accepted it. In order to substantiate his argument, he referred to Al-Jihad Trust case, also known as Judges' Case.
The Chief Justice observed that according to the principle laid down in Al-Jihad Trust case Prime Minister is the Chief Executive, but he had been virtually ousted from the process of appointment of judges (through 18th Amendment).
Directing Ibrahim Satti to read out Article 175-A to tell the court about how the PM figures in the appointment of superior courts judges, the Chief Justice asked the counsel: "Do you believe in Parliamentary form of government?" In response to the reference of Al-Jihad Trust case, Justice Khalilur Rehman Ramday observed: "Do not drag us into the controversy that what was the root cause of that decision."
He questioned Satti: "The SC was compelled to take action after a hue and cry across the country over the appointment of such judges in 1994-95 who never had been to courts. Those people had not practical experience of 10 years and even did not know the location of Lahore High Court (LHC) as they were found asking people about its location to reach the court in order to take oath. Do you think the court should not have taken that decision?" In response, Satti stated that his point was that the system of appointment was faulty. "No it is not the fault of the system but of a person," remarked Justice Ramday.
Satti further stated that Parliamentary Committee for Constitutional Reforms (PCCR) was set up to build consensus as its formation was not obligators under Article 238 and 239 of the constitution to set up such committee, as these two provisions provides a complete code for amendment in the constitution.
In response to the objection raised by the petitioners that PCCR did not hold debate in amending the Constitution, Satti said that any defect in committee proceedings, would not render the constitutional amendment void. "The power to amend was with the parliament and if there are certain lapses in exercise, even then the provisions of the constitution cannot be struck down," according to him.
"According to the Constitution there is no alternative but to obey the constitution that includes amendments as well. These amendments (18th Amendment) are final and if someone found them objectionable, he should contact the parliament," Satti added. "Article 175-A is a valid amendment that does not affect independence of judiciary in any manner," he added.
While concluding his arguments, Satti once again gave a surprising statement: "Parliamentary Committee (as envisaged by Article 175-A to oversee recommendations of Judicial Commission) is merely a post office." The bench asked him whether he was conscious of what he was saying. Satti requested the court that he wanted to withdraw his statement, which the court allowed. The court will resume the hearing here today (Thursday).