The Honourable Supreme Court of Pakistan in a most historic ruling on 21st October, 2010 has sent the newly incorporated Article 175-A of the Constitution back to the Parliament to proceed and re-examine the matter in terms of the observations in the Order. The reactions to this have been mixed; some are celebrating while the others are either relieved or scratching their heads. The Order reads in certain bits and lists suggested amendments to this Article. The question being asked by many is what will Parliament do with the suggested amendments? Parliament is not bound to do what the Court says. The Order of 21st October is not a direction but an opportunity for Parliament to re-visit the contested provision.
There are many positives in the Order although it is written in terms vague enough to trouble those of a constantly nervous disposition. The Honourable Court did not explicitly rely upon the basic structure theory as the basis of its order. It referred to the independence of the judiciary as one of the core values of our Constitution and yet it did refer to the argument that amendments to the Constitution can be struck down if the basic structure/features or the core values have been tinkered with.
The biggest reason to be optimistic is that the Order expressly states that the Court did not consider independence of the judiciary and sovereignty of Parliament as competing values; not a good sign for those hoping for a confrontation. However, depending on how the Parliament reacts the Court might have to make a difficult choice between competing values when it finally decides the issue of Article 175-A. Each time the apex court of a country renders its judgment on an issue of major constitutional importance it has to and does choose between competing values; this remains true whether the courts say it or not.
Out of the bits that the Honourable Court has read into Article 175-A, many were expected. The Chief Justice will regulate the affairs of the Judicial Commission and will initiate the names to be considered. Making the reasons for the decision of the Committee of Parliamentarians justiciable should not be a surprise to anyone either; if it had not happened now it would have happened through interpretation when someone finally challenged the Committees reasons for rejecting a name.
The final bit that has been read in, that proceedings of the Committee shall be held in camera, has raised a few eyebrows though. Here again the Court has chosen between values as it interprets them- i.e. esteem, respect and privacy that is to be accorded to the Judges versus open information and debate. Parliamentarians might be somewhat irked by this. If their tax-records and professional blemishes can be discussed so openly then why shouldnt the same apply to a Judge? Some might point to Article 68 of the Constitution that bars any discussion in Parliament with respect to the conduct of judges of superior courts in discharge of their duties. However, the 8-member Committee under Article 175-A arguably does not constitute Parliament for the purposes of Article 68. On the bright side, a detailed record of the proceedings before the 8-member Committee is to be maintained and therefore one can hope that the citizens of Pakistan will be allowed to invoke the right to information in the Constitution to gain information about the future judges of the land.
The reliance on the Hakim Khan case (PLD 1992 SC 595) to send Article 175-A back to Parliament is indeed something that few would have expected. Firstly, no constitutional amendment has ever been sent back to Parliament before. Secondly, the Hakim Khan case, did not involve a constitutional amendment and many might argue that was said there was obiter, i.e. not central to the decision.
In defence of the Order we must realize that the situation faced by the Supreme Court is novel and unprecedented too. The Order itself points to the significant cross-section of society that has raised a challenge to this amendment but this is hardly a reason to adopt a novel course when adjudicating upon a law. The amendment affects the judiciary itself so directly that a novel course had to be adopted. Whether we like it or not, constitutional law cases are not just about the law and are never divorced from the politics of the times. Institutional morality of the Court could be another reason for the Courts novel approach; if the Supreme Court, in the past, has devised novel ways to allow dictators to take charge then wouldnt its reputation be adversely affected if it didnt try a novel course to save an amendment made by the representatives of the people? Sure, they could have given the amendment the green signal through a final Order. But let us not forget the Chinese curse: may you live in interesting times.
The writer is a Barrister of Lincolns Inn and practices in Lahore. He has a special interest in Anti-trust/Competition law. He can be reached at [email protected]
