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Article175-A to be sent back to Parliament
Updated at: 1108 PST, Thursday, October 21, 2010
ISLAMABAD: The Supreme Court delivered the verdict on the longest running case on certain clauses of the 18th Amendment, Geo News reported Thursday.

Chief Justice of Pakistan Justice Iftikhar Muhammed Chaudhry read out the verdict in courtroom-1.

Article175-A of the Constitution will be sent back to the Parliament for review, according to the verdict.

The verdict said the Article affected the freedom of the judiciary, as judiciary’s freedom is of prime importance.

The Chief Justice of Pakistan has the main position in the procedure of judges’ appointment.

The Parliament and the judiciary are indispensable for each other and both of them should work in sync for supremacy of law in the country, the ruling said.

It should be mentioned here that Article 175A of the Constitution deals with the appointment of judges of the higher judiciary.

The ruling also dictates that under Article-68 of the Constitution, the behavior of judges of higher judiciary could not be brought under discussion at the Parliament.

The Parliamentary Committee is authorized to veto the recommendations put up by the Judicial Commission, according to the ruling. The Parliamentary Committee is bound to have in-camera sessions.

However, the Parliamentary Committee is bound to give reason for rejecting a name. The ruling said if the Parliament is suspended, the Committee will be incomplete.

The ruling on the clauses 8, 9 and 10 of the Article-175-A has been deferred.

“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.

The case has been adjourned till January 2011, when the SC will take up other remaining clauses on the pending petitions in the same case.

Nearly three dozen lawyers addressed the apex court during the lengthy hearing, spanning more than four months, starting on May 24 and concluding on September 30. Of them, 21 opposed different constitutional changes while others held the opposite view.

Since the 18th Amendment was passed some six months back, there has been no substantial implementation of it although the court had not stayed its operation. During this period, not a single judge to any superior court has been appointed as per the new procedure introduced by Article 175A although many vacancies exist in high courts.

The serious issue of extension of 34 additional judges of the four high courts on expiration of their first one-year term was temporarily resolved by the apex court when it ordered that they should continue for the time being. This was done only because of the pending verdict on the 18th Amendment.

The government representatives defended the 18th Amendment, mainly arguing that parliament has the supreme right to amend the Constitution and no institution can undo it.

The Punjab government’s stand remained confused most of the time. Its Advocate General left it to the Supreme Court to decide the issues in any way it wants while Shahid Hamid, who was separately hired by it for this case, stood for parliament’s right to amend the Constitution, which, he said, can’t be taken away by any other state organ.

The SC verdict deals with five key questions, the principal being the new mechanism of judges’ appointment to superior courts, which is yet to be put into practice.

Earlier talking, Barrister Wasim Sajjad, one of the leading lawyers, who represented the government to defend the constitutional changes, said, “Primarily, the court is likely to take care of these main issues raised in arguments and different petitions, challenging some clauses of the 18th Amendment.”

According to him, the first and foremost issue relates to the new procedure regarding the judges’ nomination that provides for the creation of a judicial commission (Article 175-A), headed by the chief justice of Pakistan, and a rare parliamentary committee that would finally approve the appointments.

The second challenge pertains to the unseating of MPs on the charge of defection (Article 63A) with this power having been given to political party heads, taking it away from heads of parliamentary parties.

The third issue concerns the undoing of the condition of elections within political parties on the ground that the requirement exists in a law and there is no need to keep it in the Constitution. Another question relates to the women’s reserved seats, which its challengers wanted to be dispensed with for being discriminatory. This was introduced by the 17th Amendment, which was retained by the 18th Amendment.

Yet another issue pertains to the shifting of some subjects to the provinces after the scrapping of the Concurrent Legislative List. The sixth question concerns the conclusive determination of the basic structure of the Constitution, which has not been elaborately settled on in any judgment of superior courts.

The performance of every additional high court judge is reviewed after one year to take a decision on confirming or showing door to him. After Thursday’s verdict, one of the major appointments is expected to pertain to Lahore High Court Chief Justice Mohammad Sharif, who retires on December 8. He will either be elevated to the Supreme Court or will retire.

Legal experts say that the new Article 175A is silent on how the judicial commission will get names of lawyers or judges for appointment as justices of the high courts or the Supreme Court. Before the 18th Amendment, the procedure being followed was that high court chief justices would generate names of lawyers or sessions judges for appointment as judges of their courts, which were finally approved or disapproved by the chief justice of Pakistan.

Experts say it is not known in view of the 18th Amendment that how the judicial commission will come to know of suitable names although it is the forum that will send its recommendations to the parliamentary committee for final approval. The committee can’t consider any name on its own. Neither the president nor the prime minister can send any name to the commission or the committee for consideration.