SC holds constitutional provisions under challenge, come into effect

ISLAMABAD: The Supreme Court on Thursday held in its decision on the 18th Amendment that the constitutional provisions under challenge have come into effect. It said that Article 175A envisaging the mechanism for appointment of judges of superior judiciary would be processed forthwith. However, its certain provisions including composition of the Judicial Commission and parliamentary committee and its veto power were referred to the Parliament for reconsideration and the matter was further adjourned till last week of January 2011.A 17-member larger bench headed by Chief Justice Iftikhar Muhammad Chaudhry announced the judgement.The interim order says that the new mode will be adopted in the fresh appointments.Prior to the Eighteenth Amendment, several appointments of Additional Judges have been made in various High Courts and the issue of fresh appointments is likely to come up in near future. In these circumstances and till such time these petitions are decided, Article 175A has to be given judicial enforcement by way of a construction which is in consonance with the other constitutional provisions underpinning judicial independence,” the order says.The bench while noting the fair stand taken by Mian Raza Rabbani, Chairman of the Special Committee of the Parliament for Constitutional Reforms and the Attorney General for Pakistan holds that Article 175A shall be given effect to in the manner as under:-
(i)    In all cases of an anticipated or actual vacancy a meeting of the Judicial Commission shall be convened by the Chief Justice of Pakistan in his capacity as its Chairman and the names of candidates for appointment to the Supreme Court shall be initiated by him, of the Federal Shariat Court by the Chief Justice of the said Court and of the High Courts by the respective Chief Justices.(ii)    The Chief Justice of Pakistan as head of the Judicial Commission  shall regulate its meetings and affairs as he may deem proper.(iii)    The proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained. The Parliamentary Committee shall send its approval of recommendations of the 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, it shall give specific reasons 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 bench says that all cases of fresh appointments of Judges of the Supreme Court, of the Federal Shariat Court, of the High Courts and of Additional Judges of the latter Courts shall be processed forthwith under Article 175A.To enable the Parliament to proceed and re-examine the matter in terms of the observations made in its judgement, these petitions are adjourned to a date in the last week of January, 2011, the bench adds.The bench says that in view of the arguments with regard to the effect of Article 175A on the independence of judiciary and the observations about deferring to the parliamentary mandate, they would like to refer to the Parliament for re-consideration, the issue of appointment process of Judges to the superior courts introduced by Article 175A of the Constitution, inter alia, in the light of the its concerns/reservations expressed and observations / suggestions.
The bench observes that making reference to the Parliament for reconsideration is in accord with the law and practice of this Court.Giving reasons for making a referral, the bench says that 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 to a legislation which was no ordinary piece of legislation but was a constitutional amendment.“By making this unanimous reference to the Parliament for re-consideration, we did not consider the sovereignty of the Parliament and judicial independence as competing values,” the bench adds.The order further says that both the institutions are vital and indispensable for all of us and they do not vie but rather complement each other so that the people could live in peace and prosper in a society which is just and wherein the rule of law reigns supreme.
The order says “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.”The bench says that they 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 bench says.
Citing independence of judiciary and its separation from the executive, the order says that the Parliament was conscious of this scheme, because other than inserting Article 175A, 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,” the order adds.
The bench at another place writes that they have considered the submissions made and have held extensive deliberations qua all the Articles under challenge.
The Court at this stage would not like to express its opinion on the merits of the issues raised and arguments addressed and would rather, in the first instance, defer to the parliamentary opinion qua Article 175A on reconsideration by it in terms of this order.
“We would thereafter decide all these petitions adverting to all the issues raised therein,” the bench adds.The order further says that the political sovereign i.e. 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 the Judges to do “right to all manner of people according to law, without fear or favour, affection or ill-will”.A number of petitioners had challenged Articles 1, 17, 27, 38, 45, 46, 48, 51, 58 (2)(b), 62, 63, etc  – App