Case Closed or a Fresh Amendment Needed?
By Cyril Almeida
The order handed down by the Supreme Court on the challenges to the 18th Amendment focuses entirely on the process for the appointment of superior court judges, the crux of the complaints of the two dozen-odd petitioners and applicants.
While the order has been received relatively warmly by the legal community, including lawyers who appeared before the 17-member bench, it has raised several questions, particularly about what precisely the court has requested/demanded that parliament do.
Clearest in the order is what will happen between now and the last week of January 2011, when the final judgment will be handed down: “Notwithstanding the pendency of these petitions, the constitutional provisions under challenge have come into effect.”
This means Article 175A, which sets out the new, two-tier appointment process, stands operationalized immediately. However, the court has controlled the operation of Article 175A much in the way the famous Al Jehad Trust case from the mid-1990s controlled the discretion of the president in the appointment of Supreme Court judges, and handed the primacy in the appointment process to the chief justice of the SC.
The Court’s order affects four changes to Article 175A. One, the chief justices of the Supreme Court and high courts will “initiate” the process of nominating names for vacancies on the respective courts in the Judicial Commission. Two, the chief justice of the SC will “regulate” the “meetings and affairs” of the Judicial Commission “as he may deem proper”.
Three, the Parliamentary Committee will have to hold its meetings in-camera. Four, if the PC rejects any nominee forwarded by the Judicial Commission it will have to record its reasons and those reasons “shall be justiciable by the Supreme Court”.
The crucial part: none of these changes per se require parliament to do anything in terms of legislation, ordinary or constitutional. Rules of business for the Parliamentary Committee in any case have to be formulated, and at that point the third and fourth requirement of the SC order can be incorporated.
Does that mean the matter is automatically settled? Not quite. For one, the court is yet to hand down its final judgment. For another, the order states, “We (the SC judges) would like to refer to the Parliament for re-consideration, the issue of appointment process of Judges … in the light of the concerns/reservations expressed and observations/suggestions made hereinabove.”
In paragraph 10 of the 18-page order, the court notes the petitioners had argued that “to ensure that the appointment process is in consonance with the concept of independence of judiciary, separation of powers and to make it workable, Article 175A may be amended”, going on to list four specific changes the ‘petitioners’ have suggested.
Two of those changes — the PC must “give very sound reasons” for rejecting a Judicial Commission nominee; and the PC meetings should be held in-camera — have already been incorporated in the manner Article 175A is to operate between now and January.
The other two changes recommended by the petitioners, and possibly endorsed by the SC, are more problematic. First, increasing the number of “most senior” SC judges on the Judicial Commission from two to four would require changing the wording of Article 175A(2)(ii).
Second, making the Judicial Commission’s nomination binding if it were to reiterate a nominee rejected the first time by the Parliamentary Committee would also appear to require the insertion of a new clause in Article 175A. Both the suggested changes can only come about via a constitutional amendment.
So, has the Supreme Court asked parliament to pass a fresh constitutional amendment to reflect the changes demanded by the ‘petitioners’ in para 10 of the order?
Lawyers, including those who appeared before the 17-member bench, appeared split over the issue. Government representatives declined to comment, citing the need to avoid ‘controversy’ at this point.
But, from a perspective of national political stability and because of the institutional clash between the judiciary and the executive that broke out into the open, the matter is critical.
Will parliament have to pass a fresh amendment to change the language of Article 175A or has the SC-mandated ‘controlled’ use of Article 175A all but settled the matter?
A senior lawyer who declined to be named because of the sensitivity of the matter said, “The doves on the court won by sidestepping the possibility of striking down a constitutional amendment. But the hawks want to see if the government behaves well. If it doesn’t, the final order in January could bring the hammer down.”
So a provisional settlement appears to keep options open, though perhaps at the cost of constitutional and legal clarity.
There is another possibility.
In substance, though not in form, the court has, through ‘reading down’ Article 175A, by and large returned to the pre-18th Amendment days which gave the chief justices primacy in the appointment process. Having achieved that, the SC has ‘upheld parliamentary sovereignty’ by tossing the matter back to parliament, where, in the absence of explicit and specific requests, the matter could die a quiet death-by-committee.
The country has three months until it finds out the answer. (Courtesy Dawn)
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