Dr Abdul Wahid Soomro (MNA Pakistan Peoples Party)

ISLAMABAD: As the appointment of superior court judges proposed in the 18th Amendment came under harsh scrutiny from the Supreme Court all week, legal experts believe the outcome of the hearings, which began in the last week of May, is beginning to take shape.
Over the course of the last three months, and particularly in the last week, comments and questions from the bench indicate marked displeasure with Article 175-A, which spells out the new appointment procedure for High Court and Supreme Court judges.

Under the new procedure, a seven-member Judicial Commission of Pakistan will nominate judges for vacant slots on the Supreme Court, nominations which must then be approved by an eight-member Parliamentary Committee before the president formalises the appointments. An expanded Judicial Commission which includes relevant judicial and legal figures from a province will nominate judges for the particular provincial High Court.

According to lawyers who have appeared before the 17-member bench and others who are following events closely in Courtroom No 1, the Supreme Court’s reservations are largely focused on the nature and purpose of the Parliamentary Committee.

“They seem to have, reluctantly, signed on to the idea of a judicial commission,” according to a senior advocate, “but the Parliamentary Committee is the problem. What role does it have, the (Supreme) Court wants to know.”

Members of the Special Parliamentary Committee on Constitutional Reforms, which debated and finalised the new appointment procedure, claim the purpose of the Parliamentary Committee is to dilute the responsibility of individuals.

Under the old system of appointments, the Chief Justice of the Supreme Court and the prime minister were the key figures, while under the new system the Judicial Commission and the Parliamentary Committee respectively are to replace the individual roles.(In practice, a series of Supreme Court judgments in the 1990s effectively ousted the constitutional discretion of the prime minister and gave the Chief Justice of the SC the controlling power in appointments.)

The new appointment process has come under attack from several judges, particularly Justices Khalilur Rehman Ramday and Jawwad Khwaja. The thrust of the judges’ complaint is that the new process would subordinate the Judicial Commission, which is to consist of, among others, the SC chief justice, the next two senior-most judges of the SC and a retired justice of the SC, to the Parliamentary Committee.

In part, lawyers blame the government for not having a coherent strategy to defend the Parliamentary Committee.

“Leave aside the constitutionality (of striking down an amendment) for a minute. The government showed real incompetence here,” said a senior advocate. “If the judges are worried about being second-guessed by a (Jamshed) Dasti type, then they should have picked the senior and experienced jurists in parliament to placate the judges.”

A retired judge said, “They (the government) could at least have formed the rules of the Parliamentary Committee, so that when the judges ask, ‘What will happen if the PC rejects a nomination?’ or ‘Does the PC have to give reasons for rejecting a nomination?’ the federation’s lawyers could have provided the answers.”

Nevertheless, the fact that hearings have continued for so long is largely attributed to a court which appears conflicted about the constitutionality of striking down an amendment.

Comments from Justices Asif Khosa and Saqib Nisar in particular have led observers to believe that some justices appear reluctant to endorse a judicial right to strike down an amendment.

“There is a majority to strike down the PC,” said a senior SC advocate who is closely following the proceedings. “But the time the court is taking is probably to help it develop a consensus. You only need nine judges for a majority, but this is controversial stuff. They probably want to make sure the votes are there.”

Another lawyer, who has been part of the proceedings, agreed. “Other than Kesavananda (a 1973 Indian Supreme Court judgment), there’s just no constitutional jurisprudence to support the striking down of an amendment. This would be revolutionary.”

Salman Raja, a Supreme Court advocate representing several ‘interveners’ in the 18th Amendment proceedings, warns about the consequences of a judgment against parts of the amendment: “To strike down the Parliamentary Committee, they have to build an edifice first. Here the ‘basic structure’ most handy is the Objectives Resolution because it has an Islamic basis and because it refers to judicial independence. But a basic structure built around the Objectives Resolution would be a disaster.”

Mr Raja points out that after the Objectives Resolution was made a substantive part of the constitution by the 1985 parliament, a series of court judgments began to attack existing legislation.

“They went after the Muslim Family Laws Ordinance, on polygamy, on the need for a wife’s permission in order for a man to marry again, on the inheritance of grandkids whose parent passed away before the grandparent. They went after insurance laws because they concern contracts based on chance,” said Mr Raja.

“It culminated with a three-member bench of the Lahore High Court declaring un-Islamic Article 45 (the president’s power to grant pardons) on the grounds that only the heirs had the right to grant pardon.”

Finally, two judgments in 1992 and 1993 ruled that neither constitutional provisions nor ordinary law could be struck down on the grounds of being in violation of the Objectives Resolution, according to Mr Raja, who added, “If the court finds a ‘basic structure’ now on the basis of the OR, the floodgates would open again. Suddenly, everything will be controlled by a judge’s interpretation of religious edicts under the OR.”

Last week the Advocate General of Sindh, Yousuf Leghari, called for the deletion of the Objectives Resolution from the constitution altogether in his remarks before the 17-member bench.

Outside the courtroom, the drawn-out proceedings are believed to be causing consternation among the team responsible for the government’s overall legal strategy. In particular, Law Minister Babar Awan is believed to be unhappy with the direction of the hearings and may try and block Raza Rabbani’s appearance before the court.

However, a senior lawyer familiar with government strategy downplayed the rumours of internal rifts: “There’s some good cop/bad cop involved. But it’s the nature of this game. If Raza (Rabbani) is summoned by the court, he’ll go.”

For now, the proceedings look set to go on, with one veteran courtroom watcher predicting at least another two weeks of hearings ahead. Crucially, even at this late stage, there does not appear to be unanimity on the court, judging by the questions put by the bench and comments of individual justices.

However, a senior advocate following the proceedings indicated that during last week’s hearings he could count a majority, with some votes to spare, leaning towards striking down the Parliamentary Committee.

Another senior advocate ventured his assessment: “The Judicial Commission will stay. The Parliamentary Committee will go. The only question is, will it (the judgment) be unanimous?”
Original Post@Dawn.com