The Supreme Court referred to parliament on Thursday a new mechanism for appointment of superior court judges introduced under Article 175-A of the 18th Amendment that seems to have dashed all hopes of the hawks striving to pitch judiciary against the parliament, as the apex court’s interim order on the 18th Amendment case is being widely applauded and it may help bring down the political temperature in the country.
Throwing the constitutional ball back to the parliament’s court, the SC, nevertheless, kept some initiatives for itself by postponing further hearing till the third week of January next year.
By making this unanimous reference to parliament for reconsideration, the court said, it did not consider the sovereignty of parliament and judicial independence as competing values. “Both the institutions are vital and indispensable for all of us and they do not vie rather complement each other so that the people could live in peace and prosper in a society which is just and where the rule of law reigns supreme.”
The judgment has left little choice for the enthusiastic opponents of the 18th Amendment who now have to appreciate the ruling by describing it as the best decision in which the domain of all constitutional institutions has been accepted.
A 17-judge full court announced the interim short order after over four months of threadbare deliberations on petitions challenging 27 provisions of the 18th Amendment. The bench also made it clear that till the time parliament reconsidered the new method of appointments, the judges would be elevated in accordance with the new provision.
This means, according to some legal experts, that the fate of 32 additional judges of four high courts, who have completed their tenure, but continue to function as judges because of a stay order by the Supreme Court, will be decided under the new method.
As Chief Justice Iftikhar Mohammad Chaudhry read out the 18-page ruling, which focused on Article 175-A, and kept quiet on the rest of the 26 challenges, there was pin drop silence in the Courtroom One.
This was a considerable change from the mood at the Supreme Court premises during earlier verdicts. On previous occasions, the slogans of lawyers in favour of the judiciary filled the air, providing sound bites and dramatic footage for the waiting television cameras.
The order said: “The provisions may be amended in terms that instead of two most senior judges of the Supreme Court being part of the Judicial Commission (JC), the number should be increased to four most senior judges. Secondly, if JC’s recommendation in favour of a candidate for judgeship is not agreed by the Parliamentary Committee (PC), the committee shall give sound reasons and refer it back to JC for reconsideration. Upon considering the reasons if the JC again reiterate the recommendation, it shall be final and the president shall make the appointment accordingly.
Citing the speech of Raza Rabbani in the National Assembly at the time of introducing the draft proposal of the 18th Amendment and citing federation’s arguments, the judgment also provided a guideline suggesting that in cases of vacancy a meeting of the JC will be convened by the CJP as its chairman and the names of candidates for appointment to the Supreme Court will be initiated by him, of the Federal Shariat Court by its chief justice and of the high courts by respective chief justices. The CJP as head of the JC will regulate its meetings and affairs as he may deem proper.
The proceedings of the PC will be held in camera, but a detailed record of its proceedings and deliberations will be maintained. The PC will send its approval of recommendations of the JC to the prime minister for onward transmission to the president for necessary orders. If the PC disagrees or rejects any recommendations of the JC, it will give specific reasons and the prime minister will send copy of the opinion of the committee to the CJP and the same shall be justiciable by the Supreme Court.