Chief Justice Iftikhar Mohammad Chaudhry observed that a high court judge would be condemned forever if the committee disapproved his name for elevation to the Supreme Court, adding that the judiciary could not afford litigation on such issues.

The chief justice made the observation during the hearing of several petitions against the 18th Amendment.

He said if findings of the committee were justiciable then judiciary, being an important organ of the state, could not afford such litigation.

The observation was made when Advocate Shahid Hamid, representing the Punjab government and pleading in favour of the committee, argued that the committee would have to record sound reasons for refusing to confirm a nomination made by the judicial commission.

“What harm will it pose if PC makes a wrong decision and the same is referred to the court for adjudication,” the counsel said, adding that the exercise of power by the PC would remain a justiciable act as much as the exercise of similar power by the president or the prime minister under the previous system of appointment.

Justice Saqib Nisar came to the rescue of Mr Hamid and said that perhaps the counsel wanted to establish that the process of justiciability would be a check on the arbitrariness of the PC.

“The PC must record reasons for vetoing a recommendation which would be justiciable,” Justice Nisar said, adding that even though a strong judiciary had emerged today the old system of appointment of judges was non-transparent and marred with nepotism and favouritism.

But Justice Khalilur Rehman Ramday expressed doubts about the functioning of the PC and asked how could recommendations made by such a huge judicial commission with chief justice as its head and two senior-most judges as its members be subjected to scrutiny by the PC.



The bench also expressed the view that roles of the prime minister, the most important pillar in the parliamentary form of governance, as well as the chief justice, had been reduced under the new method of appointments.

“Thinking loud, do you think we are doing a service to the parliamentary system by rendering the office of the prime minister, who runs the entire show as the head of the government, a mere post office,” the chief justice asked.

The bench was also critical about the absence of any guiding principle for the functioning of the PC and said the amendment was also silent on the justiciability.



Justice Shakirullah Jan recalled that the Constitution was also silent on the justiciability factor in the now substituted method of the appointment of judges, rather the concept came through the 1996 Al-Jihad Trust case.

“The appointment has been made broad-based in view of past experiences,” Justice Shakirullah Jan observed, saying that the prime minister himself, being a member of the parliament, had delegated his powers to the PC.

The guidelines submitted by the Punjab government, Shahid Hamid replied, would ensure harmony between the functioning of the JC and the PC saying the PC was necessary to provide bipartisan support to the one elevated as a judge in the superior judiciary.



Earlier on the looming judicial crisis in Balochistan, Justice Asif Saeed Khosa observed that the Balochistan High Court was emptied not by others but by a decision of the Supreme Court, explaining that when constitutional functionaries functioned they were aware of many things but sometimes difficult decisions had to be taken in the interest of the system.

Had the earlier system of appointment of judges been absolutely fine, there would have been no need of the 1996 Al-Jihad Trust case, Justice Asif Khosa observed. He said there was definitely something wrong and the need was felt for rectifying it.

Justice Khosa, however, conceded that the personal choices or favouritism on the part of the chief justice was very minimal in the old system, rather the ruling parties of the day used to exert influence in such appointments.
Dawn