During March 2009 to March 2013, an independent judiciary restored as a result of popular movement and an elected Parliament have co-existed side by side. As Parliament of 2008 has completed its term and honourable Chief Justice of Pakistan (CJP) about to retire, it seems appropriate to reflect on the court from the perspective of a parliamentarian.

For reasons of space, the discourse is limited only to three areas: the appointment of judges, the application of contempt law and the general treatment of Parliament.

For the first time, the 18th Amendment introduced Article 175(A) to formalise a modest role of Parliament in the selection of judges through a bipartisan Parliamentary Committee (PC) with equal representation of the government and opposition members from both the National Assembly and the Senate. But when the Supreme Court (SC) expressed some reservations, Parliament revisited it and through the 19th Amendment placed huge restrictions on it. The court, however, further diluted its powers by ruling that the decisions of PC were subject to judicial review. The Judicial Commission (JC) made 126 nominations during 2010-13 in respect of SC and High Court (HC) judges. Out of these, Parliament disagreed with only eight. But the court overturned PC’s decision, thus virtually making JC the sole authority for the appointment of judges.

Then President Asif Zardari filed a constitutional reference before SC seeking opinion on several questions of law, including the role of JC, PC and presidency in the appointment of judges, as well as whether any JC member can also initiate names for the appointment of judges. The SC ruled: “The role of Prime Minister and President in the appointment of judges of the superior courts is nothing but ministerial; and after receiving the nomination from the committee, the Prime Minister and President have no discretion, but to forward or appoint the nominees”, thus literally holding that these offices were no more than merely post offices. About the question of initiating nominations in JC, the learned court stated that rules provided for the nominations to be initiated by the CJP or the CJs of HCs and Federal Shariat Court. The substantive question of law remained unanswered.

All members of JC are honourable judges, except the Law Minister, the Attorney General and a senior advocate of SC. As a result, the honourable CJP alone has been initiating nominations, which were then promptly approved by JC. The commission also made its own rules and decided to conduct business in secrecy, declaring that its proceedings would not be made public. While the constitution specifically provides for in-camera proceedings of PC, it lays no such restriction on JC.

With the honourable CJP alone initiating the nominations, PC rendered toothless and President and PM reduced to post offices, the former virtually became the sole authority to appoint judges, while Parliament helplessly watched the proceedings. No wonder that frustrated voices have been raised in the 2008 Parliament calling for disbanding PC altogether.

From Parliament’s perspective, the contempt notice to Imran Khan is neither new, nor surprising. After restoration, the court initiated contempt proceedings against more than 60 judges for taking oath under PCO in November 2007. All the accused judges tendered an unconditional apology, with the exception of four whose cases are still pending. It is not known whether and when their cases will be taken up.

A contempt notice was also served on former PM Raja Pervaiz Ashraf for writing a letter to SC requesting that a commission be appointed, a la another important case, to look into the allegations against him in the Rental Power Projects. The notice has not been discharged even after an apology.  Former Law Minister Babar Awan was served contempt notice for his remarks about the verdict in the Memogate scandal and his licence to practice was suspended. He has also tendered an unconditional apology, yet not let off the hook.

Contempt cases against PPP leaders, Taj Haider and Sharjeel Inam Memon, have been initiated for criticising a court verdict declaring the appointment of NAB Chairman Justice (retd) Syed Deedar Shah invalid. Contempt notices were also issued to MQM chief Altaf Hussain and caretaker PM Mir Hazar Khan Khoso. Admiral (retd) Fasih Bokhari to was served contempt notice for writing a (personal) confidential letter to President Zardari, which seemed to complain that the court was unnecessarily pressurising NAB officials in high profile investigations.

The court seemed increasingly relying on the contempt law to uphold its dignity and prestige. A learned high court judge sent a senior government officer to jail for not casting eyes down, which was found by the judge as attempting to stare him down. The 2008 Parliament failed in taking steps to ensure that the dignity of courts rest, in the words of Lord Denning, “on surer foundations than the contempt law.” It was disappointing that the court not only annulled amendments made by Parliament last year in the contempt law, but also asked for copies of its internal proceedings, even though Article 69 clearly forbids it from doing so.

For the first time, the elected leader of the House was sent home, even as the Speaker - after due deliberation and applying her mind over the court orders - had concluded that the question of disqualification had not arisen. The provocative manner in which the letter conveying the court’s order about Yousuf Raza Gilani was sent to Speaker Dr Fehmida Mirza directly by an Assistant Registrar was so distressing that she had to express serious concern. “The contents of the letter are in bad taste and also against parliamentary norms and traditions,” she was constrained to remark.

A question asked in Parliament that whether there were dual national judges was not answered on the ground that the law and the constitution does not bar dual nationals from becoming judges. Also, in reply to a query about the number of suo motu notices issued, a High Court refused to reply saying that it amounted to placing a check on the judiciary.

The Public Accounts Committee (PAC) called for the accounts record of the apex court and, in this context, summoned the Registrar. It was, however, refused. The parliamentarians were surprised that principles of transparency and accountability were not being applied uniformly. The 2008 Parliament confirmed the endorsement of the PCO judges of 1999, including the CJP, but did not confirm the PCO judges of 2007. With hindsight, there is a little serpent of doubt that bites the soul sometimes. Was it a folly? Should Parliament not have treated both categories of PCO judges alike?

There is need for a rational debate involving Parliament, superior bar bodies, judges and civil society on the independence of judiciary and on the limits of powers of state organs. Is the independence of judiciary guaranteed by vesting the power to appoint judges in just the CJP alone or it is best served when the power is diffused between Parliament, President, Prime Minister and Bar Council?

A new Parliament is already in place. It is an occasion to reflect on how to prevent judicial activism from becoming an unrestrained and unguided adventurism. Eventually all applause dies down, every flower withers away, every drumbeat go silent and every trophy gathers dust. Is it not time to ponder that momentary applause in the media is not to be allowed to sway our honourable judges.

Of all the organs of state, the judiciary alone has the power to define the limits of other organs. It is an awesome power. It calls for a regime in which this huge power is exercised with modesty, humility and restraint, on the one hand, and a credible system of oversight on the other. The recently demised Parliament failed in creating such a regime. One hopes that Parliament of 2013 will succeed where that of 2008 failed.

(The views expressed here are solely those of the writer in his private capacity and do not in any way represent the views of The Nation. Meanwhile, opposing viewpoints are welcome.)

 The writer is PPP senator.