ISLAMABAD - As the Supreme Court cannot do legislation, the matter to modify Article 175A of Constitution will have to be referred to the parliament.

Chief Justice Nasir ul Mulk said this during the Full Court of the apex court here on Thursday on the issue of 18th amendment.

Article 175A was inserted in the Constitution under the 18th Amendment. Under Article 175A Judicial Commission of Pakistan (JCP) and Parliamentary Committee (PC) were established for the appointment of judges in superior courts. The JCP recommends the names of judges, while the PC approves them.

The chief justice said excluding PC from Article 175A would be like modification in the Constitution, which they cannot do, therefore, the matter will have to be referred to the parliament, as the court cannot do the legislation.

Justice Jawwad said it would become difficult for them to exclude or insert anything in the Constitution, adding; “if the parliamentary party’s role is excluded then there will be a vacuum, which the court cannot fill.”

However, Hamid Khan, representing various bars, including Sindh High Court Bar Associations, contended that no vacuum would be created, saying the PC is not only alien to the scheme of independence of judiciary, but also against the parliamentary form of govt. He said the duty to enforce the fundamental rights is the responsibility of judiciary, adding democracy flourishes in those countries where there is independent judiciary.

Hamid Khan also argued that the separation of power, independence of judiciary and fundamental rights are the basic features and on these touchstones the constitutional amendment could be struck down.

The chief justice inquired from the counsel whether he was relying on the Objectives Resolution and Article 175 of Constitution and it is the touchstone to strike down the constitutional amendment. Hamid Khan replied in affirmative.

Concluding his arguments, Hamid Khan said though he had reservations over the appointment of some judges by JCP, but cannot withstand the Parliamentary Committee. He said: “The politicians in our country have not yet mature enough to even conceptualise the enormity of task of appointment of judges.” “We have a history and the Al-Jihad judgment did not come in void. It was the reaction to the reckless appointment made in judiciary in 1994 by the political government.” Hamid wound up his arguments by saying; “The nation that does not learn from history then the history is destined to be repeated.”

Advocate Ikram Chaudhry, representing District Bar Council Rawalpindi, adopted the arguments of Hamid Khan, while Shahid Orakzai, appearing in personal capacity, opposed the existence of Judicial Commission of Pakistan. The case is adjourned till 12th May.

Meanwhile, Chief Justice Nasir ul Mulk, addressing Full Court reference, held in memory of Justice Mamoon Kazi, former judge of the apex court, observed that as guardian of the constitution, it is the duty of a judge to ensure that the rights of the accused are not violated in the process of criminal adjudication. Mamoon Kazi passed away on April 2, 2014.

“Judiciary is the guardian of constitutionally protected vestiges of the French Revolution: life, liberty and property of the people. It is incumbent upon every judge, to check the excesses of administration and to protect people’s freedom. The modern Criminal Justice System is broadly tasked with meting out retributive justice while simultaneously protecting the rights of the accused. It is the obligation of a judge, as guardian of the text and spirit of the Constitution, to ensure that the rights of the accused are not violated in the process of criminal adjudication”, says the CJP in his speech.

The chief justice also observed that a true form of democracy will only usher when Judiciary, as guardians of the Constitution, will actively ensures executive’s compliance with the dictates of the Constitution.