Can the Chief Justice Not Vote?

The Supreme Court has adjourned until Wednesday hearings against the 18th Amendment. According to Dawn, several arguments were made prior to the adjournment, many of which centered on the proper roles of parliament and the courts. Though the SCBA and the CJ seem to believe that what is at stake is the independence of the court, I can’t help but wonder if their real concern is not the superiority of the court.

According to Dawn,

Advocate Hamid Khan, counsel for the Supreme Court Bar Association (SCBA), said judiciary’s independence was directly linked with the procedure of the appointment of judges.

The concept of the judicial commission was borrowed from South Africa, Khan told the court.

He further said that the Supreme Court in Pakistan has never quashed any constitutional amendment on the basis of the constitution’s fundamentals.

However, the Indian Supreme Court has been practicing judicial review and interpretation and has on different occasions invalidated constitutional amendments made by the parliament, Khan said.

During the hearing, Justice Saqib Nisar said that in the United Kingdom, a member of the parliament cannot be involved in the process of judicial appointments.

My first response to all of this is laughter. Where is the ‘Ghairat Brigade’ now? For all of their wailing and pulling hair over sovereignty, now we are considering over-ruling the act of a parliament elected by the people so that we can follow in a practise of India? Oh, this is just too funny.

Actually, blogger pejamistri from Let Us Build Pakistan blog explains in an excellent blog post the problems with Hamid Khan’s line of thinking today.

Mr.  Hamid Khan however came up with the response that we borrowed this procedure from South Africa. I know the reason why Akram Shaikh and Hamid Khan are reluctant to discuss in detail the appointments of judges in different parts of the world. The role of parliamentarians in appointment of judges is not alien to the world , there have been several research papers and discussion both in and out of the parliament in all parts of the world.

In UK , in 2005 , the Lord select committee published a detailed report explaining the changes made by the “Constitutional Reforms Act 2005? , please note that this act recommends a judicial appointments commission to play a key role in all the judicial appointments in future.

Then USIP produces a white paper (in January 2009) , discussing the same question of “Judicial appointments and Judicial Independence“. Let me quote some facts from this paper:

Systems of judicial appointments come in four basic configurations:
1. appointment by political institutions;
2. appointment by the judiciary itself;
3. appointment by a judicial council (which may include non-judge members);
4. selection through an electoral system.

Countries using the above configuration

1. appointment by political institutions; Most of East European Countries, Italy , South Korea, US , Brazil , Russia, Germany ,
2. appointment by the judiciary itself; India, Pakistan
3. appointment by a judicial council (which may include non-judge members); France, Iraq
4. selection through an electoral system. Japan , US States Court(recall procedure) ,

It is important to point out that Supreme Court of Pakistan is not the right institution to suggest which configuration is best for the people of Pakistan , this decision is made by the parliament and not by the judiciary all over the world. As I have been saying that the only valid reason for supreme court to review the 18th amendment or any amendment in the constitution is to see if the amendment violates any of the fundamental rights of the people of Pakistan.

I do however agree on one point that the judicial independence has a relationship with the judicial appointment procedure , particularly in case of appointment of High Court and Supreme Court judges. We already have seen that how appointment by a single authority, be it the president/government of Pakistan or Chief Justice of Pakistan, can be misused to compromise the independence of judiciary. There are no two opinions about that.

But we need to understand that it is the parliament who is going to decide which procedure is better to appoint the judges. And in 18th amendment parliament has decided unanimously what is the right procedure.

Hamid Khan today (Monday) , kept harping about the “basic structure” in the light of “Objective Resolution” , we must note that both of these terms “basic structure of the constitution” and “Objective Resolution” are the weapons in the hands of establishment to undermine the powers of Parliament.  The notion of basic structure of constitution was invented by the Peerzadas of Pakistan , (ab)using it from the Indian Supreme Court verdict to safeguard the rights of minorities in India.

Basic structure theory should not be abused. The founders of 1973 constitution deliberately used the “Objective Resolution” as the preamble and knew that Objective resolution in no way provides the mechanism or concrete guide of its own implementation , therefore it can not be an operative part in the constitution. I would touch in more detail how “Objective resolution” is mere an abstract statement on what guidelines to observe in framing the constitution. “Objective Resolution” can not be used to form a “basic structure” of constitution of Pakistan during the course of this case.

This brings me to the main point of argument that seems to be missing in much of the debate. Can the Chief Justice not vote? Can Hamid Khan not vote? Actually, they can both vote. And this is the central issue – whether or not the rules of our nation will be decided by a small group of people who are unelected and unaccountable to the people, or whether the rules of our nation will be decided by the elected representatives of the people. That is the whole issue.

We elected a parliament in a free and fair election. That parliament UNANIMOUSLY approved the 18th Amendment. Now, as we know very well, just because an amendment is passed it does not make permanent. There is a process to overturn any items that are not what the people want – vote for new MNAs who will pass a new amendment to repeal the offensive clauses.

CJ Iftikhar Chaudhry and Hamid Khan have a vote that counts just the same as everyone else. That is called Democracy. They should not get an extra vote, and they should not get to overrule the votes of millions of people.