ISLAMABAD: A draft constitutional amendment bill, prepared by the law ministry during Nawaz Sharif’s tenure as prime minister to give decisive authority to parliamentary body to appoint judges in the superior judiciary, is being reviewed by the law ministry under Shahid Khaqan Abbasi in order to empower the legislature even to hold the justices accountable.
The amendment bill, available with The News, was prepared following the recommendations of Farooq H Naek-led Senate committee. However, according to sources, now the law ministry is presently busy improving the bill to give parliament the power to appoint and remove judges of the superior judiciary.
As against the present situation where the Judicial Commission led by the chief justice has the extensive power to get its nominees appointed as judges of the Supreme Court and High Court, the draft constitutional amendment bill gives the parliamentary committee an upper hand in the appointment of judges.
The bill suggests the substitution of Article 175A of the Constitution. Although, the bill only deals with the judges’ appointment, the law ministry sources insist that now the deliberation is to include judges’ accountability (judges removal) in these judicial reforms.
Presently, the parliamentary committee has practically no authority to reject any of the Judicial Commission’s recommendations. But the draft constitutional bill suggests, “Decision of the Parliamentary Committee shall not be called into question in any court on any ground whatsoever.”
Under the present system, which was introduced by 18th and 19th Constitutional Amendments, the parliamentary committee, even if it rejects any of the Judicial Commission’s recommendation, such nominations get approval for final appointment.
The draft bill suggests that in case of rejection of any name, the Judicial Commission will send to the parliamentary committee a new name whereas the Supreme Court will have no authority to question the parliamentary body’s decision.
The Section 18 of the constitutional amendment bills says: “The Parliamentary Committee on receipt of a nomination from the Commission shall examine credentials, capability, moral and financial integrity of the nominee and may confirm the nominee by majority of its total membership within thirty working days, failing which the nomination shall be deemed to have been confirmed: Provided that the Parliamentary Committee may not confirm the nomination by three-fourth of its total membership within the aforesaid period: Provided further that if a nomination is not confirmed by the Parliamentary Committee it shall forward its decision to the Commission through the prime minister: Provided further that if a nomination is not confirmed, the Commission shall send another nomination within forty-five days.”
The Section 19 of the bill says: “Decision of the Parliamentary Committee shall not be called in question in any court on any ground whatsoever.”
The Section 23 of the bill says: “The provision of Article 68 shall not apply to the proceedings of the Parliamentary Committee.” Article 68 imposes restriction on Parliament to discuss the conduct of any judge of the Supreme Court or High Court in discharge of his duties.
The bill also recommends change in the constitution of the Judicial Commission, which though continues to be led by the Chief Justice of Pakistan, unlike the present situation the Commission will not have a retired chief justice or ex-judge of the SC as it member. Presently a former chief justice or a former judge of the Supreme Court is nominated by the CJP in consultation with four most senior judges of the SC (who are also the members of the Judicial Commission) as member of the Commission for a period of two years. The draft constitutional bill also recommended the setting up of Initiation Committee in each High Court to initiate nominations for appointment of judges of the High Court.