IN an article 'Aitzaz speaks his mind, political not legal' published in a national daily recently, it was suggested, nay asserted, by the writer that Mr Aitzaz Ahsan had switched sides from the judiciary to the PPP led by Zardari.

He did so by passing statements such as the fact that he feared a showdown between parliament and the judiciary if a review of the then 18th Amendment bill were to be taken up by the Supreme Court.

One may justifiably think that the assertion of desertion is tantamount to an implication that some of us still remain loyal to the chief justice and have not deserted him for political fruits. That is a highly dangerous position for a journalist to take, for his commitment and professional endeavour should only be for the truth.

We were told, that Mr Aitzaz Ahsan's statement was “nothing but a ploy to frighten” the judiciary from taking up the cases. We were also told that the new judicial appointments commission was only there to curb the independence of the judiciary. Yet, this is an assertion not backed by facts.

Is the new appointments commission a smart move by the government to nullify the impact of the judiciary? Not at all. The fact of the matter is, that in no functioning democracy does the power to appoint people of such important constitutional value lie in only one person. Britain, the country whose model we follow and where the lord chancellor's recommendation to the prime minister and then the prime minister's recommendation to the Crown was considered binding, also changed its appointments system in 2005.

Through the Constitutional Reform Act 2005, a 15-member judicial appointments commission was established, which includes six lay people! If we think of our own past, and beyond Chief Justice of Pakistan (CJP) Iftikhar Chaudhry, we will realise that institutionally and constitutionally speaking a judicial appointments commission may be a good thing for Pakistan. For, in the past, it was this unfettered power of the chief justice which allowed him to appoint any person he thought fit as a judge.

If we had a chief justice who is not as committed to independence, or not as morally upright it would be easier to influence one judge with unfettered powers than a commission with seven people with different interests being brought to the table. In fact, it arguably creates an institutional structure more committed to independence and less reliant on personality. That is a good thing. Just because it impacts the powers of the CJP does not automatically mean it is constitutionally a bad step.

Secondly, more transparency is always a good thing. Why should our judges be appointed through secret recommendations, personal preferences and closed-door meetings? Judges decide our cases and the people of Pakistan should have faith in their calibre and integrity. They should have a stake in the process which appoints them. In fact, the process which appoints them should be more rigorous than any other process because their position is permanent and unimpeachable.

Why then should they be appointed through the preferences of one person through a recommendation that is not made public?

Why is it that there should be no public scrutiny of the judges' record, as there is of others?

One can argue that through a commission not only would divergent interests be allowed to reach a consensus, but that there would also be increased public scrutiny of candidates — so that there is a better chance of ensuring that suspect nominees, who may or may not be pushed on the basis of preference alone, are vetted and left out. Hence, it is not a system designed to curb independence — merely one designed to increase scrutiny. That is again a good thing.

Lastly, can the judiciary review constitutional amendments? The argument is that precedent exists for it — the judiciary has done it in the past.

The judiciary itself decided that there were 'basic features' of the constitution. It also itself then decided what those 'basic features' were. Then it said that those basic features of the constitution could not be changed.

That is flawed logic — the constitution represents a pact and the kind of society a people want. This can change over time. The Pakistani people must have the right to change any feature, every feature, even a basic feature of their own pact with themselves. No individual, institution, or force of nature can tell a people how to live. It is precisely for that reason that the constitution gave the people of Pakistan the ability to change the constitution — not some of it, but any part of it.

When the Supreme Court accepted the basic features doctrine it was in the context of a military takeover. When the judges took oath under the PCO, then validated a military coup by Pervez Musharraf and gave him the power to amend the constitution, that is when it kept a small caveat — that there are some things that he could not change i.e. the basic features.

That decision is now being used as a precedent for why some features of the constitution cannot be changed by parliament. How convenient for us to pretend to be on a moral high horse but make use of a decision we know was politically motivated. What does that make us now? Does that not make us just as politically motivated for our own ends?

To tell one man, that we hereby as the Supreme Court give you extraordinary powers (in an unconstitutional set-up) but forbid you from violating the core features of the Pakistani people's pact with themselves is one thing. To tell the Pakistani people that we will not let you change the core features of your own pact with your own self is quite another. That is no protection of the Pakistani people's fundamental rights including the right to self-determination. That is the usurpation of the one fundamental right of society.

The writer is a barrister and a Fulbright scholar at the Columbia Law School.