ISLAMABAD: The Supreme Court on Thursday virtually shredded the fresh procedure of appointing superior court judges through Article 175-A of the Constitution by putting a series of questions focussing on the shrinking role of the prime minister in such appointments in a parliamentary form of governance.

“Though the institution of the prime minister has been made stronger under the 18th Amendment, his role has been reduced in the appointment of superior court judges,” observed Chief Justice Iftikhar Mohammad Chaudhry, while heading the 17-judge full court hearing various challenges to the amendment.

The focus of attack of Thursday’s proceedings was on the eight-member parliamentary committee comprising four members each from the treasury and the opposition, the recommendation of which, to many judges, will assume such an importance that the prime minister would be reduced to a mere post office.

“Murree and Changa Manga (near Lahore) are the grounds realities of our politics,” the bench said in an obvious reference to the confinement of legislators of certain political parties in the past for political bargaining, and expressed the apprehension that the parliamentary committee (PC) comprising different political parties would definitely bargain over the appointment of judges.

The chief justice also recalled the practice of luring political parties by offering ministership to make them part of the coalition.

Justice Khalilur Rehman Ramday recalled how the executive in the past had asserted to get their share in the appointment of judges fearing political parties in the parliamentary committee might also ask for their share in such elevations.

“I am afraid in my conclusion that the method of appointment through the new mechanism under Article 175-A is unworkable,” Justice Jawwad S. Khawaja said, adding that the purpose of discussing the issue was an attempt to resolve the ambiguity to prevent future crisis.

“We are groping in the dark and trying to pick something from the thin air,” Justice Jawwad said.

Referring to questions put by different judges, Justice Asif Saeed Khosa said these reflected that the issues had not been properly considered during deliberations in the Raza Rabbani committee which prepared the draft of the 18th Amendment.

“We (the court) as well as the people of Pakistan expect at least this much from members that they will put their best,” the judge observed. He said these questions were being asked to find a way because “we cannot ignore any constitutional breakdown in future”.

Mentioning a possible scenario in which the prime minister becomes a post office and sends the recommendation of the committee to the president without application of mind, Justice Asif Saeed Khosa asked the federal government’s counsel Waseem Sajjad if that would not disturb the entire constitutional scheme.

“If the law minister is representing the prime minister in the judicial commission and members of the treasury benches in the PC then it means that they will be acting as his representatives and following his dictates instead of sitting as a free agent,” Justice Khosa said.

Since the parliamentary committee members have no tenure it means that they would be under the strict control of and at the whims of the prime minister, Justice Khosa observed.

The bench was also critical of the fact that after the finalisation of the recommendation by the judicial commission, a professional body, the members of the committee would be left with nothing but to discuss the conduct of the judge to be elevated when Article 68 of the Constitution barred the parliament from discussing the conduct of judges.

Justice Saqib Nisar cited a situation in which a 56-year-old high court chief justice was disapproved by the committee for elevation to the apex court, and asked should he wait to reach his superannuation and see his junior judges being elevated or if a reference of misconduct against a high court chief justice was rejected by the Supreme Judicial Council but his nomination was rejected by the committee, what would he do.

“Had it been an honourable society, that chief justice would quit and go home in a situation like this,” Justice Khosa said, adding that if such traditions were developed in the country, the new system of appointment (Article 175-A) would probably work.