As per the Charter, all PCO judges should be kicked out including the Islamofascist Chaudhry Iftikhar
Appointment of judges: PPP, PML-N say goodbye to CoD
By Amir Wasim and Ahmad Hassan
Wednesday, 03 Mar, 2010
ISLAMABAD: The Pakistan People’s Party and Pakistan Muslim League-N have changed their stance on judges’ appointment agreed under the Charter of Democracy (CoD) signed about four years ago.
Leaders of both the major parties said on Tuesday they had “made a compromise on the CoD for the sake of consensus among all the political parties and to honour the present chief justice for his struggle for the rule of law and independence of the judiciary”.
The 26-member parliamentary committee on constitutional reforms (PCCR), headed by Senator Raza Rabbani, despite holding sessions in camera, issued on Tuesday the text of the agreed clauses dealing with the appointment of judges in the higher judiciary.
The members agreed on the process of appointment of judges through a judicial commission as mentioned in the CoD, but abolished a condition that the body should be headed by a chief justice who had never taken oath under a PCO (Provisional Constitution Order).
The 36-point CoD, signed by former prime ministers Benazir Bhutto and Nawaz Sharif in London in May 2006, suggested: “Recommendations for appointment of judges to superior judiciary shall be formulated through a commission” headed by a chief justice “who has never previously taken oath under the PCO”.
A PPP leader claimed that the clause had been altered on the insistence of PML-N. The party pressed for retaining Chief Justice Iftikhar Mohammad Chaudhry in recognition of his services for the cause of judiciary’s independence.
According to sources, some members of the committee, including those from the PPP, had earlier demanded that the implementation of the proposed amendment should be applicable to the existing judiciary.
Chief Justice Iftikhar is the only serving Supreme Court judge who has previously taken oath under a PCO, in 2000.
PML-N leader Iqbal Zafar Jhagra said the CoD was an agreement between the two parties and it was not possible for both of them to change the Constitution without the support of other parties.
He said the CoD was merely a document that provided a guideline for making changes to the Constitution.
Mr Jhagra said his party wanted to make changes to the Constitution with a view to ensuring continuity of the democratic system.
He said he personally believed that there was no need for mentioning the term PCO in the Constitution. He said judges should not be made the only target because there were other forces which had always supported PCOs.
The PML-N leader admitted that his party had agreed to change the CoD because it wanted to honour the present chief justice for his struggle for the rule of law.
“It would have been unfair to send Justice Iftikhar home just for the sake of implementation of the CoD,” he said.
Hinting at more changes in the charter, Mr Jhagra said parliament was supreme and it could change the CoD.
When a PPP member was asked as to why his party had agreed to a compromise on the CoD, he said the party did not want to take the country towards “anarchy” on the judges’ issue. Had the PPP insisted on implementation of the CoD in letter and spirit, it would have been perceived by a section of the public and media that the government wanted to get rid of the chief justice because of his decision on the National Reconciliation Ordinance, he said.
The parliamentary committee officially announced agreement among the member parties to amend the articles of the Constitution pertaining to the procedure of appointment of judges of superior courts.
According to a handout issued by the PCCR secretariat: “The parliamentary committee for constitutional reforms, in its meetings held in February, 2010, decided unanimously to amend articles of the Constitution pertaining to the procedure for the appointment of judges to the superior judiciary.”
a) There shall be a judicial commission of Pakistan comprising the chief justice of Pakistan as chairman; two senior-most judges of the Supreme Court; federal minister for law and justice; attorney general of Pakistan and a senior advocate to be nominated by the Pakistan Bar Council.
(b) For appointments to a provincial high court the commission will be expanded to include the chief justice and senior-most judge of the high court to which the appointments are being made; provincial minister for law and a senior advocate to be nominated by the provincial bar council.
(c) For appointments to the Islamabad high court, the commission will comprise, in addition to the judicial commission of Pakistan, the chief justice and the senior-most judge of the Islamabad high court. For the initial appointments to Islamabad high court, the chief justices of the four high courts shall also be members.
(d) For appointments to the Federal Shariat Court, the commission will comprise, in addition to the judicial commission of Pakistan, the chief justice and the most senior judge of the FSC.
It was decided that when a vacancy occurred in the office of the chief justice of Pakistan, the most senior judge of the court would become the chief justice.
The judicial commission, by a majority of the total membership, shall recommend one name for each vacancy in the Supreme Court or the high courts, to a parliamentary committee comprising four members from the Senate and four from the National Assembly with equal representation of the treasury and the opposition.The committee may not disapprove a recommendation made by the judicial commission except by a three-fourths majority and in such a case the commission shall send a new name for its consideration. The committee shall decide the matter within 14 days after receipt of recommendations, failing which the recommendations made by the judicial commission shall be deemed to have been confirmed.
The powers of the president/chief executive in the appointment of judges will now be exercised by the parliamentary committee. However, the formal appointments will be made by the president.