Balancing like a tightrope walker high above the black depths of verdure beneath, the Supreme Court of Pakistan has lived up to its stated position that it will not seek to destabilise the system by making it abundantly clear that it can also not lose sight of the fact that Pakistani nation passing through “testing times…which could be best addressed only through measures and methods where societal and collective considerations are the moving and driving force.”
Not only has it refused to strike down the 18th Amendment decision, it has upheld the validity of Article 175-A until the parliament revisits or reconsiders it in the light of recommendations made in its short order issued on Monday – much to the chagrin of those who had envisioned a ‘looming confrontation between the apex court and parliament’ coming to a head.
The said amendment, contested by about a score of petitioners, has been sent back to the parliament to reconsider some sections of Article 175-A that deal with the working of the Parliamentary Committee tasked to evaluate nominations for new appointments made by the Judicial Commission. So, essentially, the ball is now in the parliament’s court.
We hope the parliament would take it up in the same spirit, shunning the perception – which we think is misplaced – that some kind of a contest is in the making between these two organs – the Executive and the Judiciary – of the state. Adjudication upon the 18th Amendment was not consequent to a suo motu notice, but at the instance of a variety of petitioners. That the 17-member full court took nearly four months; conducted over fifty hearings and invited a range of legal and constitutional experts for their input, reflects the fact that the matter could not have been given more importance.
In no uncertain terms the Supreme Court of Pakistan has upheld the parliament’s uncontested and exclusive right to effect amendments in the constitution: “…by making this unanimous reference to the parliament for reconsideration, we did not consider the sovereignty of parliament and judicial independence as competing values…”. But at the same time, it has reminded that Article 68 places restriction on any discussion in the parliament “with respect to the conduct of any judge of the Supreme Court or high court in the discharge of his duties”.
No doubt then the court’s order, which is interim in nature at least till January next year, has restated the principle of separation of powers from which stems the concept of an independent judiciary. Given that the present verdict is not final and petitions have yet to be finally disposed of, the Supreme Court’s interim order tends to define the parameters of national debate on the 18th Amendment.
Far tougher terrain lays ahead: for instance what would be the fate of the court’s recommendations vis-à-vis Article 175-A regarding appointment of judges to superior courts if the parliament fails to muster a two-thirds majority in future. Similarly, the political narrative on the issue of defection law (Article 63-A) has undergone a radical change. The future of parliamentary consensus that was available while firming up the 18th Amendment may not be available early next year when the Supreme Court resumes hearings on the petitions against this piece of legislation.
It is profoundly important to underline the fact that the procedure under Article 175-A has two problems: first, it deprives the top judge, the Chief Justice of Pakistan, of his right to ensure that higher judiciary gets competent, honest and independent judges, and second, it lends authority to some members of the parliament to reject judges for reasons which they may not make public.
So, the court has ruled that the Chief Justice of Pakistan will have the central, if not the most critical, position in the entire process of appointments. Also, while using its lawful prerogative to reject or approve the recommendations made by the Judicial Commission, the Parliamentary Committee should meet in-camera, record its specific reasons for the rejection and the prime minister shall send copy of the said opinion of the committee to the Chief Justice of Pakistan and “the same shall be justiciable by the Supreme Court.”
The spirit behind court’s recommendations is to ensure that its nominees get a fair chance, irrespective of members’ perceived opinions about them. The court has strove to establish its position as balanced, unaffected by the raging political confrontation. Surely, that would help induce sobriety and calmness among elements that tend to see the superior judiciary as rival and partisan. But at the same time the court has conveyed in unmistakable terms that it shall brook no restraint or fetter on its independence or in other words, the courts should not be subject to improper influence from any state organ, or from any private or partisan interest.
It is indeed heartening to learn that Prime Minister Gilani has promptly promised to implement the court’s order. We expect of him also that he would rein in some of his cabinet colleagues who are often found betraying an acute sense of guilty conscience, cashing in on every opportunity to make remarks disrespectful of the law and judiciary.
It is interesting to note that in African mentality, the Africans may refer to Legislature, Executive and Judiciary as the three cooking-pot supporting stones which make every meal possible. Once they are well organised to function in the interest of the people as a whole, the common good of the nation is served and the country develops in stability and joy. – brecorder