Free judiciary can stem future adventurism: CJ
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By: Online on:03 Aug 2010
ISLAMABAD – To avoid any adventurism in future the Government should not try to fasten hands of judiciary and restrict it from examining any act of Parliament because it was the Parliament who validated unconstitutional act taken by a dictator on 3rd November 2007 but the SC undid that unlawful parliamentary validation, Chief Justice Iftikhar Muhammad Chaudhry remarked Monday while hearing petitions against 18th Amendment.
The 17-member larger bench of the Supreme Court raised several questions about the constitutional status of the Parliamentary Committee in the appointment of superior courts’ judges.
The Chief Justice said in his remarks, “We are not appreciating the previous Parliament that passed a resolution in favour of unconstitutional step taken by a military dictator on November 3 but we have great respect for the incumbent Parliament that never validated it from the day one.”
The Chief Justice asked the Federation’s counsel, Wasim Sajjad, who was also part of previous parliament, that such restrictions on judiciary would provide opportunity in future for illegal rule. Referring previous judgements, the Chief Justice told Wasim that according to Asma Jahangir Case 1972, Fazal Chaudhry Case, NRO case and Sindh High Court Bar Association case, the Supreme Court could examine the act of Parliament.
Justice Javed Iqbal asked Wasim whether it was mandate of the sitting Parliament to change more than 100 constitutional provisions or whether it was mentioned in the manifesto of the political parties that they would frame a new constitution or whether any electoral mandate they were enjoying as a constituent assembly, adding that these were some areas that could not be considered.
Wasim said that Charter of Democracy was the main source behind the new procedure of judges’ appointment and suggested that the Court should avoid to examine or ask such political questions because Parliament was authorised to amend the Constitution. But at the same time he asked the Court for interpretation.
Justice Ramday asked him, “We are not clear yet that what you are expecting from us because in your arguments you restricted us to examine the act of Parliament and also asked us for interpretation.”
Justice Anwar Zaheer Jammali observed that Wasim’s arguments were contradictory as one side he told them that Constitution was a living document and Parliament could make changes in it but on the other hand he compelled the judiciary to its previous judgements.
Earlier, Wasim had argued that no probe could be made into legislature’s affairs and its motives. The questions regarding rationale behind 18th Amendment and its Articles like 175-A or 63-A were political issues, he added. He told the bench that Article 239 and its Clauses (5) & (6) were clear bar to examine the amendment that was itself a part of the Constitution.
Justice Tassadaq Hussain Jillani asked him whether the Court had no power to interpret any provision. Wasim replied in negative, saying that the concept of interpretation was different than striking down. Quoting Fouji Foundation Vs Shamim-ur-Rehman Case, he said that the court had the power to examine the legislative power, adding that judicial review power confined to enactment of the Constitution.
Justice Ramday remarked that judges’ appointment procedure was discussed only for nine hours during the deliberations of nine months. He said that the idea of Judicial Commission had been under-consideration in India since 1987. He told Sajjad, “Through reinsertion of Article 63-A, you did undermine the role of Parliament that was otherwise respectable for us. You are not relying on parliamentarians for their positive role and made an amendment on presumptions to counter the evil but you gave them oversight role in the appointment of superior court’s judges.”
Sajjad said in a careless manner that the system would evolve and with the passage of time flaws would be ironed out. On that, Justice Ramday remarked, “You have changed the 150-year-old system only for a litmus test.”
Regarding Article 63-A, Justice Jawwad S Khawaja remarked that Parliament was not the name of a few personalities.
Wasim replied that the Court had powers under Article 8 of the Constitution but there were some limitations regarding political issues.
Justice Anwar Jammali asked, “Who would decide this what are the political issues.” Wasim conceded that the Court would decide it.
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Free judiciary can stem future adventurism: CJ
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