18th amendment case: ball in parliament's court
The court order demonstrates that judicial independence and parliamentary sovereignty need not be competing values.
The eagerly-awaited order of the Supreme Court regarding the petitions challenging provisions of the 18th amendment to the Constitution was announced by the Chief Justice around 11 am on October 21, 2010.
A sensible decision by an independent court
The order might have come as a surprise to many. However, it came as an especially rude shock to certain elements who claim to be the flag-bearers of democracy and the rule of law. They were waiting for an opportunity to unleash themselves against the Supreme Court’s encroachment on parliament’s turf if the 18th Amendment was struck down.
These elements are the only ones that are privately mourning the Supreme Court order, which is sensible and allows an important constitutional issue to be resolved without any unnecessary friction. However, in my opinion, this should not be interpreted to mean that the powers of the Supreme Court are fettered in any way.
What was the main issue?
Here’s a brief recapitulation: the judicial appointment process was significantly altered by the newly-inserted Article 175-A. This article, which amends Article 177, 193 & 203C relating to judicial appointments to the Supreme Court, High Courts & Federal Shariat Court, introduces a system by which a parliamentary committee could reject the recommendations made by the judicial commission. Furthermore, and quite importantly, the ‘primacy’ of the chief justice in the process of appointment of judges has been taken away.
The order focuses exclusively on this issue, i.e. the method of appointment of judges to the superior courts. The remaining 26 provisions, which were also challenged before the court, have not been touched at this stage.
The order states that:
(7) 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.
This makes it crystal clear that the SC has deferred the decision to the parliament-subject to a caveat: their consideration has to be in terms of the court order. Therefore, it is important to find out what the court’s recommendations are, to fully comprehend the scope of such a deferral.
The order refers to the arguments raised by petitioners to allow the judiciary to function independently and confirm the separation of powers.
It lays down the following guidelines:
(10) “It was, therefore, suggested during arguments that to ensure that the appointment process is in consonance with the concept of independence of judiciary, separation of powers and to make it workable, Article 175A may be amended in following terms:
1) That instead of two most senior Judges of the Supreme Court being part of the Judicial Commission, the number should be increased to four senior most Judges.
2) That when a recommendation has been made by a Judicial Commission for the appointment of a candidate as a Judge, and such recommendation is not agreed/agreeable by the Committee of the Parliamentarians as per the majority of 3/4th, the Committee shall give very sound reasons and shall refer the matter back to the Judicial Commission for reconsideration. The Judicial Commission upon considering the reasons if again reiterates the recommendation, it shall be final and the President shall make the appointment accordingly.
3) That the proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained.”
A sovereign parliament and a free judiciary
The order then says that the SC would like the parliament to reconsider the matter in light of these observations. The order makes it evident that because the court makes the “unanimous reference to the Parliament for reconsideration,” it does not consider the sovereignty of the parliament and judicial independence to be competing values. This completely refutes the arguments raised by certain quarters that the Honourable Supreme Court is perpetually seeking to stamp its authority on every other constitutional organ or authority, at any given opportunity.
What does this order really entail?
It is, in my humble opinion, a reference to the parliament to amend the article. The observations made in paragraph (17) of the order make it clear that the petitions are being adjourned to a date in the last week of January 2011, to “enable the Parliament to proceed and re-examine the matter”. If the SC did not want the parliament to do anything and this was merely a ‘reading down’ of Article 175-A, then there would be no need to make this observation.
The use of the word “may” in paragraph (10) does not, in my opinion, make it optional for the parliament to accept or reject the guidelines provided therein.
The court also laid down the method by which Article 175-A will be given effect in the interim period, regarding the confirmation of additional judges of the High Courts. This can be termed as the ‘reading down’ of Article 175-A. Reading down, as opposed to striking down, means that the court chooses to interpret the law in such a way that its legal effect is diluted, rather than annulling the law altogether.
We do know that the Honourable Supreme Court had the option to make a decision on all the petitions that were pending. However, it decided to “solicit, in the first instance, the collective wisdom of the chosen representatives of the people by referring the matter for reconsideration”. Hence, it has shown grace-and plenty of it.
The onus lies squarely on the parliament
A friend asked what would happen if the parliament refuses to amend Article 175-A in terms of the observations made by the court. What if the parliament partially accepts the observations of the Supreme Court? Would the court then strike down Article 175-A, or would it interpret it in a manner which may amount to ‘reading down’ of the same?
Let us all sincerely hope that we never have to come to that and the parliament will show grace in return. Let us hope it affects an amendment to Article 175-A in terms of the observations made in the court order.