NEWS ANALYSIS
The Supreme Court did not strike down any articles or clauses of the 18th constitutional amendment and without disposing of the petitions, adjourned the case till January 2011, referring Article 175A, which relates to the appointment of the judges to the parliament for a review under the guidelines given by the top court.
In its interim order which, according to senior lawyer Hafeez Pirzada can also be called a judgment, the Supreme Court only discussed Article 175A and withheld its decision on the provisions of other 26 articles which had also been challenged. The positive aspect of this interim order is that likely confrontation between the parliament and the judiciary has been averted, albeit for the time being.
The negative aspect, according to Hafeez Pirzada, is that this issue will linger on for another three months. Understandably, independence of the judiciary appears to have been the foremost question which the Supreme Court decided to address first as it undermined the role of the chief justice in appointing the judges of superior courts.
“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 order said.
While many doubts have been removed and the parliament given a chance to review its decision, the Supreme Court still has the right of judicial review and this article can be struck down in case the parliament does not follow the guidelines laid down by the Supreme Court and amends Article 175A accordingly.
Generally, it was being expected that the Supreme Court would strike down some articles and clauses (of the 18th amendment) for not being in conformity with the spirit of the constitution. But the judges, as they had pronounced their judgment on October 13 and 18, contrary to the expectations of many, did not choose the confrontational path and decided to solicit the collective wisdom of the people’s representatives.
However, the Supreme Court of Pakistan accepted the sovereignty of the parliament and threw the ball in its court. “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 order said.
The touchstones the Supreme Court applied while adjudicating on these petitions were: i) parliamentary form of government; ii) democracy blended with Islam; iii) provision of fundamental rights; iv) independence of the judiciary; v) federalism. In the case of Article 175A, independence of the judiciary was felt to have been chipped away.
But the Supreme Court has made it clear that the parliament needs to amend Article 175A further. This will be possible only when the constitution is again amended and this requires a two-thirds majority. Now the question is that with such a politically-charged environment in the post-18th amendment scenario, will the government be able to make a 19th amendment and have it passed with the same unanimity?
The three months given by the Supreme Court is not too short for the parliament to act. But in the developing situation with reports of an impending political change, much water is expected to passed under the bridge by January 2011.
