Overview of the 18th constitutional amendment (Business Recorder April 24, 2010)

As expected some litigation-happy lawyers are out with their legal guns. Even before the draft amendment was put up as a bill before the parliament the legal community zealots had started opposing that amendment related to the judge’s appointment. They made it clear that it would be challenged, and true to their word the Supreme Court Bar Association and Chaudhry Akram have jumped into the arena as champions of ‘independence of judiciary.’

Is their over-zealousness promoted by the lobby that wants to keep the elected government entangled in legal battles? Or, they are doing so to please the institution they serve? Are the very questions on the tired minds of the people who want the institutions of state to stop fighting each other and let the government concentrate on the economy. The mother of all problems of the country.

These lawyers are not only putting the judiciary in an embarrassing situation, of either deciding in their vested interest by concentrating power to appoint judges with one man without any oversight; Or, accept the formula given by the parliament unanimously. They would also be guilty of pitching judiciary against the parliament, which would be harmful for the evolving democracy in Pakistan.

Although the initial proposal which could have watered down powers of the CJP in the judicial commission did not pass through the PCCR, many supporters of the present over-zealous judiciary have said that these changes are against the basic structure of the constitution which calls for the separation of judiciary from the executive. Barrister Babar Sattar has dismissed this argument objectively in an article in The News last Saturday quoting several judgments of the Supreme Court of Pakistan dealing with the same issue. I must congratulate his courage as not many Supreme Court lawyers have the courage to come on record on this issue fearing that it might offend the honourable court. Indeed he is not alone Justice (Retired) Fakhruddin G. Ibrahim, Aitezaz Ehsan and the fiery Kurd have also come out openly suggesting that the 18th Amendment should not have been challenged. Aitezaz says it loud and clear that it cannot be over-turned by the court. Justice Fakhruddin told me that the two institutions of the state should not be put against each other as it would be harmful for democracy.

Other leading constitutional lawyers agree privately that the amendment related to the appointment procedure is not in conflict with the fundamental principles of the constitution. Publically, they do not want to annoy the CJP by supporting this amendment. Then there are my friends, who are deeply involved in lawyers professional bodies politics, who would rather flow with the popular charged mood of their constituents, event though it undermines the democratic process in the country. I would be failing if I do not mention here some of my journalist colleagues who have become partisan and lost their objectivity for one reason or another.

Let’s review here the disputed amendments to the constitution in respect of appointment of judges to the Supreme Court and the provincial High Courts. The constitutional position so far has been that the Chief Justice of Pakistan “shall be appointed by the President, and each of the other judges shall be appointed by the President after consultation with the Chief Justice.” In the case of high courts the Chief Justice of the province recommends names to the Governor. He has to pass them on to the Chief Justice of Pakistan, if he has no adverse report against the person nominated by the Chief Justice of the province. The CJP then takes the final decision and sends the list to the President for appointment.

Though the constitution said that the President has to appoint the judges “after consultation with the CJP”, the factual position is otherwise. The word ‘consultation’ here has been interpreted by the Supreme Court of Pakistan in the Al-Jihad case as such, that, the name recommended by the CJP is binding on the President. What else a mortal soul would do, if given a chance to decide about his/her own jurisdiction and power? This was however done on the principle that the independence of judiciary and separation of judiciary from the executive has to be maintained. So unlike India where a collegium of five judges of the Supreme Court decides about appointment of a new judge, in Pakistan it was one man’s discretion.

Now the 18th Amendment has substituted this Article 176 changing the system completely. The new article says “the recommendations for appointment of judges to the superior judiciary shall be formulated through a judicial commission” and “the chairman shall be a Chief Justice.” Recognising the stand taken by the judges who did not take oath under the second Musharraf PCO, the parliamentarians deleted the proposal made in the Charter of Democracy (COD) that only a judge who has never previously taken oath under the Provisional Constitutional Order (PCO) can administer an oath to the new judge.

According to the 18th Amendment a judicial commission chaired by the CJP and comprising two senior judges, one retired judge nominated by the CJP, Law Minister, Attorney General and a nominee of the Pakistan Bar Council would recommend to the parliamentary committee, the name of a person for each vacancy of a judge in the Supreme Court. (The Supreme Court Bar which has now challenged the amendment wanted its nominee at the commission instead of Bar Council. I wonder whether they would have still challenged the amendment if their representation was accepted).

This 8-member parliamentary committee would have equal representation from the treasury and opposition benches. The committee ‘may confirm the nominee by majority within 14 days, failing which nomination shall be deemed to have been confirmed’. However to reject the nominee they would need three-fourth majority of the committee. For the high courts, the judicial commission would have four members and the Chief Justice would be the chairman. There would be no provincial committee for appointment of judges.

The people who have now jumped-in in the name of protecting the basic structure of the constitution and are actively opposing the 18th Amendment’s various clauses were unfortunately missing in action a few years ago. Where were they when military dictators actual changed the parliamentary structure of the constitution, when lethal PCOs and LFOs were injected intravenously in the constitution, when objective resolution was made part of the constitution and when the Supreme Courts were validating subversion of the constitution.

The parliament has taken notice of the collusive role played by our courts and have tried to plug the whole. In spite of Article 6 of the constitution which says that “any person who abrogates or subverts, or suspends or holds in abeyance … the constitution by use of force … or any other unconstitutional means shall be guilty of high treason,” twice the military has over-thrown elected governments and violated the constitution.   And every time it was validated by the Supreme Court of Pakistan. To check the abetting judiciary, the 18th Amendment has added a clause 2(A) which says: “An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and High Court.”

At the end of the day legal community should keep in mind that Pakistan has a constitution but had only short interludes of constitutionalism. For almost half of its life Pakistan has been ruled by the military dictators who either abrogated the constitution, or held it in ‘abeyance’ or ‘suspended. And when it was restored to legitimise their rule, the military rulers mutilated the 1973 constitution. 18th Amendment is a positive step towards constitutionalism and that should not be restricted.  (ayazbabar@gmail.com)

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