SC order on 18th Amendment calls for review of article on judges` appointment: Ball back in parliament`s court
ISLAMABAD, Oct 21 In what has been billed as a landmark verdict that may further bring down the political temperature in the country, the Supreme Court referred to parliament on Thursday a new mechanism for appointment of superior court judges introduced under Article 175-A of the 18th Amendment.
Throwing the constitutional ball back to the parliament's court, the SC, nevertheless, kept some initiatives for itself by postponing further hearing till the third week of January next year.
A 17-judge full court announced the interim short order after over four months of threadbare deliberations on petitions challenging 27 provisions of the 18th Amendment. The bench also made it clear that till the time parliament reconsidered the new method of appointments, the judges would be elevated in accordance with the new provision.
This means, according to some legal experts, that the fate of 32 additional judges of four high courts, who have completed their tenure but continue to function as judges because of a stay order by the Supreme Court, will be decided under the new method.
As Chief Justice Iftikhar Mohammad Chaudhry read out the 18-page ruling, which focused on Article 175-A and kept quiet on the rest of the 26 challenges, there was pin drop silence in the Courtroom One. To add to the suspense, the judgment was announced at 11am, instead of the expected 9.30am. That the situation had been defused even by the time the judgment came was evident from the fact that not a single slogan was raised after the pronouncement of the ruling.
This was a considerable change from the mood at the Supreme Court premises during earlier verdicts. On previous occasions, the slogans of lawyers in favour of the judiciary filled the air, providing sound bites and dramatic footage for the waiting television cameras.
The judgment has left little choice for the enthusiastic opponents of the 18th Amendment who now have to appreciate the ruling by describing it as the best decision in which the domain of all constitutional institutions has been accepted.
The unanimous ruling came after the judges held at least four conclaves in the Supreme Court building. And immediately the registrar was ordered to send copies of the order to Senate Chairman Farooq Naek, National Assembly Speaker Dr Fehmida Mirza, Chairman of the Parliamentary Committee on Constitutional Reforms (PCCR) Raza Rabbani and the Law Secretary Masood Chisti.
“This is for the first time ever in our national, judicial and constitutional history that such a serious challenge has been thrown by a cross section of society, including some premier bar associations of the country, to a legislation which was no ordinary piece of legislation but a constitutional amendment,” the ruling said.
By making this unanimous reference to parliament for reconsideration, the court said, it did not consider the sovereignty of parliament and judicial independence as competing values.
“Both the institutions are vital and indispensable for all of us and they do not vie rather complement each other so that the people could live in peace and prosper in a society which is just and where the rule of law reigns supreme.”
The ruling also provided guidelines for parliament to reconsider Article 175-A in a way to ensure that the appointment process is in consonance with the independence of judiciary, separation of powers and to make it workable.
The order said “The provisions may be amended in terms that instead of two most senior judges of the Supreme Court being part of the Judicial Commission (JC), the number should be increased to four most senior judges.
Secondly, if JC's recommendation in favour of a candidate for judgeship is not agreed by the Parliamentary Committee (PC), the committee shall give sound reasons and refer it back to JC for reconsideration. Upon considering the reasons if the JC again reiterate the recommendation, it shall be final and the president shall make the appointment accordingly.
“We can also not lose sight of the fact that we, as a nation, are passing through testing times facing multi-dimensional challenges which could be best addressed only through measures and methods where societal and collective considerations are the moving and driving force.
“We had two options, either to decide all these petitions forthwith or to solicit, in the first instance, the collective wisdom of the chosen representatives 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.”
The court also explained that making reference to parliament for reconsideration is in accordance with the law and practice of the court as held in the 1992 Hakim Khan case.
Citing the speech of Raza Rabbani in the National Assembly at the time of introducing the draft proposal of the 18th Amendment and citing federation's arguments, the judgment also provided a guideline suggesting that in cases of vacancy a meeting of the JC will be convened by the CJP as its chairman and the names of candidates for appointment to the Supreme Court will be initiated by him, of the Federal Shariat Court by its chief justice and of the high courts by respective chief justices. The CJP as head of the JC will regulate its meetings and affairs as he may deem proper.
The proceedings of the PC will be held in camera, but a detailed record of its proceedings and deliberations will be maintained. The PC will send its approval of recommendations of the JC to the prime minister for onward transmission to the president for necessary orders. If the PC disagrees or rejects any recommendations of the JC, it will give specific reasons and the prime minister will send copy of the opinion of the committee to the CJP and the same shall be justiciable by the Supreme Court.
The ruling said “The court is conscious that it is a creation of the Constitution which envisages a structure of governance based on trichotomy of powers in terms of which the functions of each organ have been constitutionally delineated keeping in view the seminal concept of separation of powers.
“The political sovereign, the people, being trustees of a 'sacred' trust in the distribution of powers under the Constitution, did not make judges supreme arbiters on issues purely political. But they wanted judges to do right to all manner of people according to law, without fear or favour, affection or ill-will.
“While examining the vires of Article 175-A and its judicial enforcement, we are mindful of the mandate of the oath of office, its constraints and the fundamental principles which underpin judicial independence in the constitutional scheme envisaged by the founding fathers.
“Judiciaries in all democratic set-ups are vulnerable to the power of legislatures to create, alter or impair judicial structures including the mode of appointing, removing and remunerating the judges. In our country, like in some others as well, this power is tampered with constitutional guarantees that restrict legislative control over the judiciary.
“The parliament was conscious of this scheme, because other than inserting Article 175-A, it did not amend any other provision on which is built the edifice of judicial independence or the provisions relating to the functions of judiciary.
“Only the appointment process has been changed and the avowed objective seems to be to strike a balance between judicial independence and democratic accountability/parliamentary oversight.”