The near-unanimous approval of the 19th Amendment bill by the National Assembly has set a precedent of restraint, wisdom and mutual respect among various institutions of the state in Pakistan. The need for this amendment was felt when the Supreme Court (SC), while deciding on identical petitions challenging the 18th Amendment, made recommendations to parliament regarding the procedure for the appointment of judges to the superior courts. The Parliamentary Committee for Constitutional Reforms (PCCR) accepted all but two recommendations. It increased the number of judges from three to five in the judicial commission (including the Chief Justice of Pakistan), agreed to the holding of the parliamentary committee’s meetings in camera, and made it mandatory for the parliamentary committee to give reasons in writing in case it rejects a nomination made by the judicial commission. These changes have increased the serving judiciary’s power in the appointments process. The PCCR, however, did not accept the proposal that rejected nominations will be sent back to the judicial commission for reconsideration and if the commission reiterates its decision, it would become final. It did however, adopt a provision that any rejection by a three-fourths majority of the parliamentary committee would have to record its reasons in writing, to be forwarded to the judicial commission through the prime minister. Nevertheless, parliament and its committee would have the last word, a befitting reiteration of parliament’s sovereignty over and above all other institutions of state. Another important feature of the 19th Amendment is the empowerment of the judicial commission in the appointments of ad hoc judges. An amendment to Article 182 of the constitution binds the chief justice to appoint ad hoc judges in consultation with the judicial commission. Experience shows that leverage in the hands of one person, even one as competent as the Chief Justice of Pakistan, laid these appointments open to accusations of bias or personal likes and dislikes. There is an inherent risk of bias in favour of retired judges or advocates who might be considered close to the court because of frequent interaction. The broadening of decision-making powers will make the appointment of ad hoc judges less likely to become controversial.
The SC’s verdict on the 18th Amendment petitions shows its respect for parliament. By passing the 19th Amendment, parliament has reciprocated that gesture of respect. The PCCR examined the SC verdict on merit and incorporated most of the recommendations made by the SC. This is the spirit of institutions working within the boundaries set by the constitution, which can make democracy work. A clash only becomes inevitable if institutions intrude onto one another’s turf. Despite provocations by certain sections of the media, parliament, the judiciary and the executive have all observed their boundaries. Better sense prevailed on all sides. It shows that institutions are beginning to learn to work in cooperation with each other, not at cross-purposes. This is no mean achievement. Pakistan had to wait so long for this to happen because of frequent military coups. The democratic process has been interrupted so many times that systems could not evolve. Every time there was an intervention, the question of how to govern the country went back to the drawing board. How can the various constituents of the system work together in such an environment? The history of democratic experience stands witness to the fact that continuity strengthens a system and ensures its success. Developed countries have taken centuries to evolve their systems. Continuity, reform and wisdom are the key factors in institutionalising democracy. This was the first such instance of this happening in Pakistan. It must be welcomed. It is hoped that this tradition will be upheld in future too. – Dailytimes