However, Chief Justice Iftikhar Muhammad Chaudhry referred to July 31, 2009 decision wherein the court had nullified unconstitutional steps taken by former President General Pervez Musharraf (Retd) and observed that "the court wants stability of the institution and this is the reason it did not pass any judicial verdict against the ordinances issued by the previous regime, instead those were referred to the parliament for a decision." It was done to strengthen parliamentary system, he added.
National Reconciliation Ordinance (NRO) was also among those references the court had not only referred to the parliament but had also extended its life. Justice Javed Iqbal questioned the counsel whether the political parties in power had made any commitment to people in their elections campaign that they would change the appointment procedure of superior court judges.
Responding to the query, Hamid stated that the manifestos of both the PML-N and PPP did include this commitment and they had the mandate to change the system. While defending the newly inserted Article 175A (procedure for appointment of superior courts judges), he said that the nominations would emanate from the Chief Justices, who would head the judicial commission and the law laid down in Al-Jihad Trust Case no. 1.
Hamid said the objection of petitioners to the inclusion of attorney general and law minister, and representative of bar councils in the proposed judicial commission was inappropriate. The non-judicial members in the commission would assist in the process of selection of the candidates for judgeship. Justice Asif Saeed Khosa remarked that the appointment of judges was too serious a matter to be left only to judges.
Chief Justice observed that varied processes for appointments of judges had been in practice in different countries in accordance with their requirements. "We have to learn lessons from the history which is riddled with martial laws, abrogation of constitution, illegal governments and validation of unconstitutional steps by the courts," observed Justice Ramday. November 3, 2007 steps (declaration of emergency by former President Musharraf and sacking of superior courts judges) were neither accepted by people nor validated by the courts. It is fortunate that the Parliament also responded positively and did not validate those steps, remarked Justice Ramday. "The situation is changing and courts are alive now," he added.
"Whosoever claim the credit, the course of history was changed by the November 3, 2007 action of the court," observed Justice Javed Iqbal. Justice Ramday remarked that it was due to judicial activism that people were attaching hopes to judiciary. The Chief Justice remarked that they received letters from people at helms of affairs requesting for action. Referring to certain newspaper articles, he said even the sitting deputy chairman of Senate had made an appeal. Hamid will continue his arguments on Thursday.