ISLAMABAD: Attorney General Maulvi Anwarul Haq told the Supreme Court on Tuesday that the prime minister had no role in appointment of superior court judges because the 18th Amendment had transferred the authority to an eight-member parliamentary committee.

“A plain reading of Article 175-A of the Constitution suggests that the prime minister has no role, rather it has been curtailed sufficiently, although not removed completely,” he said during the hearing of petitions challenging various aspects of the amendment. He also read out a statement made in parliament by Senator Raza Rabbani, chief of the Parliamentary Committee on Constitutional Reforms.

However, Chief Justice Iftikhar Mohammad Chaudhry said it would not be in accordance with the spirit of the parliamentary form of governance if the role of the prime minister as the head of the government was replaced by legislators.

Being the chief executive, the prime minister was required to be completely in the picture on matters relating to appointment of judges, he said.

With the elimination of the prime minister’s role what would be the role of the parliamentary committee after the formation of an opinion on the elevation of an individual as a judge by the judicial commission comprising the chief justice, two senior Supreme Court judges, attorney general, law minister and others, the chief justice asked.

Justice Khalilur Rehman Ramday observed that Article 175-A had compromised the role of important offices like the chief justice, two senior judges of the apex court, attorney general and the law minister.

Justice Asif Saeed Khosa said all those individuals were public servants drawing their salaries from the public exchequer.

He said the country belonged to the people and what harm would be posed if they said that from now on they would be supervising the appointment of judges, especially when they had had enough during the past 60 years. Would it belittle the common man?

Justice Khosa said that bemoaning the minimal role of the prime minister did not fit in, especially when the judiciary itself had tried to minimise his and the ruling party’s roles in matters of appointment through the Al Jihad Trust case.

Justice Ramday said: “Then we would be moving in circles because the parliamentary committee would have to give reasons in writing if it rejects a nomination by the judicial commission which would be justiciable.” He said it was about time to be honest to ourselves and to each other.

Justice Tariq Pervaiz said that under Article 48 the president was bound by the advice of the prime minister. He asked on whose advice the president would appoint judges, the prime minister’s or the parliamentary committee’s.

He said the roles of the two committees should have been reversed and the judicial commission should approve recommendations of the parliamentary committee.

Justice Khilji Arif Hussain said the parliamentary committee could reject, without consulting the prime minister, a nomination put forward by the judicial commission comprising personalities like the chief justice, two senior judges, law minister and the attorney general.

The chief justice said the legislators could reject nominations without assigning reasons.

He said some advices of the prime minister were binding on the president and some were not, but the route of the head of government rendering advice to the head of state should be followed.

Justice Saqib Nisar asked the attorney general to cite any hard and fast rule where it was written that the role of the prime minister could not be curtailed.

Article 175-A had created an exception to Article 48 but where was it written that parliament, being a sovereign body, could not create an exception, he asked.

In the previous dispensation also, the president could not reject the advice of the prime minister, he said.

Justice Nisar said when it was stated that the prime minister’s role had been eliminated it meant that the president would accept the advice of the parliamentary committee without any hesitation. Justice Khosa said the advice of the prime minister had two facets — those that were his conscious decisions and those he had to forward on the basis of the suggestions of some constitutional functionaries. In the second case, the prime minister simply acted as a post office and both the situations ran parallel in the Constitution, he said.

But for all purposes one cannot keep the prime minister out of the picture, the chief justice said again.

The attorney general said the prime minister had voted in favour of the amendment knowing well that his role was being curtailed. He said the prime minister would still be advising the president on the matter of appointments. Justice Nasirul Mulk asked the attorney general whether the advice of the prime minister would be based on the recommendations of the parliamentary committee.

The attorney general said the prime minister himself could sit on the parliamentary committee.

At the end of the day’s proceedings, the chief justice said there was need for courage to say that there was a basic structure of the Constitution so that no dictator in future could come and announce that he had the power to change the Constitution.