Except for a few specks of display of integrity, the history of the judiciary in Pakistan through its first 60 years leaves a woefully lot to be desired. Generally perceived to be captive of the so-called Doctrine of Necessity, the judiciary invariably capitulated before the dictates of the every despot who barged in clamouring to put the country right. All that changed when one Iftikhar Mohammad Chaudhry displayed the gumption to stand up to the incumbent dictator and refused to tender his resignation. By opting to suffer the consequent incarceration and humiliation, he pioneered an irreversible change in the character and conduct of the judiciary in Pakistan. Nothing has been the same ever since much to the angst of the corrupt.
The October 21 judgement of the Supreme Court (SC) in the matter of the 18th amendment is a manifestation of this newly-won freedom and speaks volumes for the sagacity displayed by all the judges of the 17-member bench that heard the petition. In an environment fraught with doomsday predictions of an impending clash between the executive and the judiciary, and in a repeat of the manner it handled the National Reconciliation Ordinance (NRO) case, the apex court acted with both authority and wisdom in referring article 175A back to the parliament for re-examination with its recommendations. Without relinquishing its constitutional prerogative to review any existing or impending law, the SC opted to first let the parliament reconsider it in the light of its observations. Simultaneously, and quite appropriately, the apex court referred to article 68 of the constitution that bars parliament to discuss the conduct of judges in any manner.
Those praying for striking down the provisions under challenge pressed into service the concept of basic structure maintaining that the principle of substantive limits on the power to amend the constitution has become a part of the constitutional law in several liberal democracies while the federation defended the impugned provisions on the basis that the concept of basic structure as a touchstone to strike down a constitutional provision is alien to our jurisprudence. It was also made clear that since judicial independence is one of the core values of the constitution, the judiciary has not been made part of either the executive or the legislature and the preamble to the constitution reiterates that the independence of the judiciary shall be fully secured.
The operative part of the judgement pertains to the enforcement of article 175A by way of a construction which is in consonance with other constitutional provisions underpinning judicial independence. The judgement has also stated that the proceedings of the parliamentary committee, as proposed, shall be held in camera and a detailed record of its proceedings and deliberations shall be maintained. The judgement further elaborates that, if the parliamentary committee disagrees or rejects any recommendations of the judicial commission, it shall give specific reasons and the Prime Minister shall send copy of the said opinion of the committee to the Chief Justice of Pakistan and the same shall be justiciable by the Supreme Court. The crucial factor to the judgement is that the petition has not been disposed of. The parliament has been given till the end of January 2011 to exercise the review option when the case will come up for hearing again.
Through this landmark judgement, the SC has wisely tread clear of the trap laid by its friends and foes alike. While the friends were clamouring for an aggressive judgement quashing certain clauses of the 18th amendment straightaway including 175A, the foes, particularly the ones hailing from the ruling majority party, were anxious for a similar verdict so that they could turn the avowed standoff with the apex court into a parliament vs. judiciary battle. The fact that the SC was able to evade the trap reaffirms its judicious approach and also signifies its resolve not to disturb the delicate balance between various pillars of the state as envisioned in the constitution. With the ball back in the court of the parliament, the legislative wing of the state now bears the exclusive responsibility of carrying forward this spirit of mutual understanding. That would be ensured if the parliament and its members are able to respond to the observations of the apex court in an objective and meaningful manner so as to maintain the balance between these two critical organs of the state.
The apex court has responded with judiciousness and firmness to the ballistic and bellicose statements of some sitting ministers and other functionaries of the ruling hierarchy. Afflicted with the martyrdom syndrome, they seem to be out to dismantle the edifice of the state and create an environment of mutual mistrust, even hatred. With one wise move of the pen, the SC has dashed their undignified objective and, instead, has rekindled the hope that, after all, there could be a semblance of maturity. It is particularly hoped that the government actors would not exploit this opportunity for their ulterior motives as that would be an unforgivable act leading to disastrous consequences for all.
The writer is a policial analyst.