ISLAMABAD – The government, Thursday, heaved a sigh of relief as the Supreme Court, in its most-awaited ruling, referred back the matter of judges’ appointment to the superior courts under Article 175-A inserted through 18th Amendment in the Constitution, to the Parliament.
“We would like to refer to the Parliament for re-consideration, the issue of appointment process of judges to the superior court introduced by Article 175-A of the Constitution,” announced Chief Justice Iftikhar Mohammad Chaudhry in the interim order on 18th Amendment, while heading a 17-member bench in the jam-packed Courtroom No.1 of the apex court Thursday.
It has been mentioned in the judgment, “We had two options; either to decide all these petition forthwith or to solicit, in the first instance, the collective wisdom of the chosen representative of the people by referring the matter for reconsideration. In adopting the latter course, we are persuaded primarily by the fact that institutions may have different roles to play, but they have common goals to pursue in accord with their constitutional mandate.”
“We can also not lose sight of the fact that we, as a nation, are passing through testing times facing multidimensional challenges, which could be best addressed only through measure and methods where societal and collective consideration are the moving and driving force.” To enable the Parliament to proceed and re-examine the matter in view of the observations made in the order the petitions have been adjourned till the first week of January 2011.
The court noted that in all cases of an anticipated or actual vacancy a meeting of the Judicial Commission shall be convened by the Chief Justice in his capacity as its chairman and the names of the candidates for appointment to the Supreme Court shall be initiated by him, of the Federal Shariat Court by its CJ and of the High Courts by the respective chief justices. The CJP as head of the Judicial Commission shall regulate its meeting and affairs as he may deem proper. The proceedings of the Parliamentary Committee shall be held in camera, and the committee would maintain detailed record of its proceedings and deliberations. The committee shall send its approval of the recommendations of Judicial Commission to the Prime Minister for onward transmission to the President for necessary orders. If the Parliamentary Committee disagrees or rejects any recommendations of Judicial Commission then it shall give specific reasons and the Prime Minister shall send copy of the said opinion of the committee to the Chief Justice.
In order to ensure the appointment process in consonance with the independence and separation of judiciary it was recommended that instead of two most senior judges of the Supreme Court the number should be increased to four most senior judges.
When the Judicial Commission makes a recommendation for the appointment of any candidate as judges, and such recommendation is not agreed or agreeable by the Parliamentary Committee then the Committee shall give very sound reasons and shall refer the matter back to the Judicial Commission for reconsideration.
The Judicial Commission upon considering the reasons if again reiterates the recommendation, it shall be final and the President shall make the appointment.
The issue of elevation of a chief justice of high court or judge of the said court to the Supreme Court, if brought before the Parliamentary Committee and discussed is likely to be violative under Article 68. The said article stipulates: “No discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties.”
It was pointed that there was serious omission in clauses (9) and (10) of Article 175-A; as in the case of dissolution of the National Assembly, the composition of the Parliamentary Committee would be incomplete.
Around 20 petitions were filed in the SC challenging the amendment. Through these petitions, various petitioners have called in question provisions of Article 1,17,17(4), 27, 38, 45, 46, 48, 51, 58(2)(b), 62, 63, 63A, 91, 106, 148, 175, 177, 193, 203C, 209, 219, 226, 245, 260, 267A and 175-A. However, most of the petitioners challenged the new procedure of appointment of judges in the superior courts under Article 175-A.
The petitions were filed by Nadeem Ahmed Advocate through his counsel Akram Sheikh, District Bar Association Rawalpindi through Muhammad Ikram Chaudhry, Wattan Party through its chairman Barrister Zafar Ullah Khan, Supreme Court Bar Association through Hamid Khan, President Pakistan Muslim League-Zia Ijaz-ul-Haq. The PML-Z chief mainly objected to article 63A of the Constitution, which empowers a party leader to disqualify a party member from his membership to the parliament, even if he is not an elected representative.
J Salik, representing the minorities through his counsel Zulfiqar Bhutta, also filed a petition and challenged the amendment regarding the rights granted to minorities in the Constitution, while Salman Akram Raja represented the civil society groups. The government representatives defended the 18th Amendment, mainly arguing that Parliament had the supreme right to amend the Constitution and no institution could undo it.
The Punjab governmentÂ’s stand remained confused most of the time. Its Advocate General left it to the Supreme Court to decide the issues in any way it wanted while Shahid Hamid, who was separately hired by it for this case, stood for the ParliamentÂ’s right to amend the Constitution, which, he said, couldnÂ’t be taken away by any other state organ.
The hearing of 18th Amendment started on May 24 and continued with brief intervals for more than four months. After hearing Salman Raja on September 30, the larger bench reserved the judgment.
During this period, not a single judge to any superior court has been appointed as per the new procedure introduced by Article 175-A although many vacancies exist in high courts.
The serious issue of extension of 34 additional judges of the four high courts on expiration of their first one-year term was temporarily resolved by the apex court when it ordered that they should continue for the time being. This was done only because of the pending verdict on the 18th Amendment.
The short order stated that all the cases of fresh appointments of judges of the Supreme Court, Federal Shariat Court, High Courts of additional judges of the latter court shall be processed forthwith under Article 175-A.
The petitioners prayed for striking down 175-A and pressed the concept of basic structure. They referred to the judgments of Supreme Courts of India and Bangladesh where the amendments were struck down on the touchstone of basic structure. Counsel for the Federation Wasim Sajjad and Attorney General Maulvi Anwarul Haq and Additional Attorney General K K Agha argued striking down constitutional provision on the basis of concept of basic structure was alien to Pakistani jurisprudence and this court may not like to review its own judgments.
At this stage the court has not decided about the election of women and non-Muslim seats through proportional representation system, and authority of party head under Article 63-A, intra-party elections and issue of Khyber Pakhtunkhwa. The petitions have been adjourned till the last week of January, the date of that shall be decided later. The registrar of the Supreme Court has been ordered to send copy of this order to Chairman Senate, Speaker National Assembly, Mian Raza Rabbani, Advisor to the Prime Minister of the Special Committee of the Parliament for Constitutional Reforms and to the secretary law and justice.