ISLAMABAD
A 17-member Supreme Court bench headed by Chief Justice Iftikhar Chaudhry on Thursday asked parliament to review Article 175A – new mechanism of appointing judges under the 18th Amendment – but stopped short of scrapping the amendment.
“We would like to refer to parliament for reconsideration, the issue of appointment process of judges to the superior courts,” said the judgement read out in English by Chief Justice Iftikhar Muhammad Chaudhry. The bench however held that certain provisions of the amendment under challenge would come into effect forthwith.
In its interim, the court order said Article 175A would be processed forthwith. It referred certain provisions of the article, including composition of the judicial commission and the parliamentary committee and its power to veto, to parliament for reconsideration and adjourned the matter until last week of January 2011.
The ruling upheld the appointments of judges already made under the new procedure and fresh appointments likely to be made in the future. “In these circumstances and till such time these petitions are decided, Article 175A has to be given judicial enforcement,” it said, adding, “Prior to the 18th Amendment, several appointments of additional judges have been made in various high courts and the issue of fresh appointments is likely to come up in near future.
In these circumstances and until such time these petitions are decided, Article 175A has to be given judicial enforcement by way of a construction which is in consonance with the other constitutional provisions underpinning judicial independence”.
Noting as fair the stance by Parliament’s Special Committee for Constitutional Reforms Chairman Raza Rabbani and the attorney general, the court held that Article 175A will be given effect in the manner that in all cases of an anticipated or actual vacancy, a meeting of the judicial commission will be convened by the chief justice of Pakistan in his capacity as its chairman and the names of the candidates for appointment to the Supreme Court will be initiated by him, of the Federal Shariat Court by the chief justice of the said court and of the high courts by the respective chief justices.
The order said that as head of the judicial commission, the chief justice of Pakistan will regulate its meetings and affairs as he may deem proper and the proceedings of the parliamentary committee will be held in camera but a detailed record of its proceedings and deliberations will be maintained.
It said the parliamentary committee will send its approval of judicial commission’s recommendations to the prime minister for onward transmission to the president for necessary orders. “If the parliamentary committee disagrees or rejects any recommendations of the judicial commission, it will give specific reasons and the prime minister will send copy of the said opinion of the committee to the chief justice of Pakistan and the same will be justiciable by the Supreme Court,” it said.
The order said all cases of fresh appointments of the judges of the Supreme Court, of the Federal Shariat Court, of the high courts and of additional judges of the latter courts shall be processed forthwith under the Article 175A.
“To enable parliament to proceed and re-examine the matter in terms of the observations made in the interim judgement, these petitions are adjourned to a date in the last week of January, 2011,” the order said. “We have considered the submissions made and have held extensive deliberations qua all the articles under challenge. 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.
Lawyers argue that appointing judges through a commission headed by the chief justice, but with nominations approved by lawmakers, infringes the independence of the judiciary. The court said that in view of the arguments with regard to the effect of Article 175A on the independence of judiciary, the SC would like to refer to the parliament for re-consideration of the issue of appointment process of judges to the superior courts introduced by Article 175A of the constitution.
“To enable the parliament to proceed and re-examine the matter in terms of the observations made above, these petitions are adjourned to a date in the last week of January 2011,” said the order signed by 17 Supreme Court judges.
Praise: Later, talking to reporters, Prime Minister Yousaf Raza Gilani said the Supreme Court verdict had proved that the judiciary held parliament in high esteem, adding that the decision had increased respect for parliament.
