Parliament and the judiciary

Daily: The Statesman
Date: 01.05.10

Can a Pakistani citizen challenge the legislation made by the politicians, the legislators, who
get disqualified (and ejected) later on for having fake degrees?

If a politician does not qualify for contesting an election but hoodwinks the voters of his
constituency by producing a bogus degree to qualify for elections, the penalty of losing the
seat by disqualification is not enough. By the way, what about the legislation in the making
of which the politician took part – voted for or against – and which became a part of the
Constitution through a Constitutional Amendment? If any such politician is nominated as a
member of the parliamentary committee overseeing the process of appointment of the
judges of the Supreme Court, as envisaged in the 18th Constitutional Amendment, what
sort of judges would be appointed is not difficult to imagine. In this regard, an interesting
point is that the scandals of using false degrees are not coming to open through the
Election Commission or any parliamentary committee but through the Supreme Court.

But that is not the end of the story. There are politicians who are holding as important
positions as the Minister for Law but they are yet to clear their names from corruption
scandals. When any such politician would be a member of the judicial commission debating
and selecting judges for the Supreme Court, what kind of judges would be sorted out can
be well perceived.

That is why Akram Sheikh Advocate is gaining support for his stance against the provision
of the 18th Constitutional Amendment that awarded a role to Parliament to look over the
appointment of the judges of the Supreme Court. The point is if Parliament is incapable of
putting its own house in order what transparency it can ensure in the process of
appointment of the judges: how would the politicians coming to Parliament after using the
fake degrees or performing other corrupt practices not affect the appointment of the judges
is still not clear. Further, it is also not clear how can the judges approved and appointed by
any such parliamentary committee or any such judicial commission dare disqualify those
kinds of politicians?

Looking from one angle, the provision of the Amendment elaborating on the mode of
appointment of the judges is an intrusion into the sphere of the judiciary. In the concept of
tri-chotomy of power in a parliamentary form of government, where Parliament is sovereign,
the judiciary is independent. The Objectives Resolution which is now a part of the
Constitution speaks for that. Justice (retired) Tariq Mehmood may be right that
independence of the judiciary is reflected through the court decisions made by the judiciary
and not through the mode of appointment of the judges, but the history speaks for a
different story. In the past, one kind of appointments introduced one kind of judges who
delivered one kind of court decisions which in turn produced one kind of effect.
Consequently, there emerged a direct relationship between one mode of appointment of
the judges and one kind of effect of the decisions. The Dogar court is one such example.

No doubt, the CoD had envisaged a judicial commission for appointment of the judges, the
idea was not only to make the appointment procedure transparent but also to keep the
judiciary pro-parliament (and aloof of the military). Nevertheless, the judiciary donned the
attire of independence independent of the help of both parliament and the executive: the
present judiciary is the product of the struggle and sacrifices of the bar and the bench. On
the other hand, the current Parliament (the members) is the by-product of that struggle.
That is, it is not that the political struggle against military dominance led to resurrection of
Parliament, it is that the lawyers’ struggle to preserve their institution (which happened to
be one of the three organs of the State), led to exclusion of the military dictator and
inclusion of the politicians who were in exile. Secondly, it is not that the lawyers’ movement
yielded fruits after politicians joined them to restore the judges in 2009. It is that politicians
sabotaged the long march in 2008 which was about to restore the judges by the show of
power and determination of the lawyers. The long march had arrived at the constitutional
avenue of Islamabad from across the country. In other words, the lawyer movement
suffered a major set back when politicians started manipulating the movement to fetch
benefits for themselves. So in the eyes of majority of the lawyers and the civil society,
politicians are yet to mature and Parliament is yet to perform its due function. Only passing
Amendments does not reflect maturity of politicians.

Transparency in the appointment of the judges is one thing but the chance of political
interference in the internal affairs of the judiciary through that mode is a different thing. The
concept of independence of the judiciary closes any door from where any political
interference may step in. The mode of appointment of the judges devised by the
Amendment may open that door: the judicial commission is an opening to expose the
administrative function of the judiciary. The door must be closed.

Under the concept of separation of powers, the judiciary is not subservient to Parliament
and the executive – both the latter constitute the government. The judiciary is a separate
and independent organ of the State. Where sovereignty of parliament is important,
independence of the judiciary is also vital: Objectives Resolution guarantees that. So,
independence of the judiciary should be ensured by all and by all means. That is what the
aspirations of people are and that is what the Constitution demands.

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