The full court has been hearing identical petitions challenging certain provisions of the 18th Amendment with particular reference to the formation of a judicial commission for the appointment of superior courts' judges. The judges drew Agha's attention to the upcoming situation in Balochistan where four judges are going to retire in the next three weeks.
The court asked him that in such a situation where there is no senior judge available, how the judicial commission would be formed and how it would initiate the process of appointment of a judge. Agha found unable to satisfy the court. However, he termed the situation a serious proposition. The court then directed him to seek instructions from the Prime Minister on this issue and inform the court accordingly. The court also asked him to conclude his arguments by 10am on Wednesday (today).
Earlier, Agha submitted that if Article 175-A does not impinge on any other Article or provision of the constitution thus it should be remained in place. To a court query, he said Article 175 (3) deals with separation of powers doctrine and it has nothing to do with the procedure of appointment of judges.
Chief Justice asked Agha to give any example of any other country except the US where judiciary and executive are involved together in the appointment of judges. Agha gave the example of Britain where, according to him, the Lord Chancellor has final authority in the appointment of judges. The court then noted that Lord Chancellor is not the final appointing authority of judges, adding that in the UK the role of executive in the appointment of judges has gradually narrowed down while in Pakistan it is being enhanced.
Justice Ghulam Rabbani observed that, "We should be realistic that our background is different from UK. One should have realised the culture and ground realities that how Patwaris and SHOs are being appointed solely on political basis".
Justice Mian Saqib Nisar observed that the role of civil servants and parliamentarians is strictly prohibited in UK's judicial commission. The Chief Justice asked Agha about the objectives of separation of powers doctrine and what constitution "wants to ensure." To which, he replied that it was for independence of judiciary, adding that through Article 175-A, "we have ensured independence of judiciary."
Justice Asif Saeed Khan Khosa observed that separation means judicial functions should be separated from executive, while the process of consultation of appointments is not part of it, adding that Article 175-A had its background at that time when the executive magistrate was working in the courts but under Article 175 (3) it was separated.
Agha said "we should not compare ourselves with India, as we have our own theories and circumstances." He said everything was amendable in the constitution of Pakistan. During hearing, Chief Justice noted that struggle for presidential form of government has failed, so now there was parliamentary form of governance in the country.
He said after the public resistance or reaction, some powers which should have been with the prime minister, but were being enjoyed by the president, have been transferred to the prime minister under the 18th Amendment. Later the court adjourned the hearing for today (Wednesday).