A matter of jurisdiction

The media has missed the relevance of the SC extending terms of additional judges of provincial high courts.

In the 1950s, our courts discovered the law of necessity. This theory favoured every dictator, whenever and wherever required. On March 16, 2009, we thought we had put this pro-establishment tradition to rest forever. Alas, the ghost hovers overhead yet again. Today, the necessity is perhaps not arising on behalf of the establishment but from an invisible tug-of-war which seems hell bent on triggering an institutional crisis. The Supreme Court has extended the terms of all 32 additional judges of provincial high courts until further orders. By doing so did it bail the government out of a potential governance crisis?

Amidst spot-fixing scandals, invitations to patriotic generals to cleanse the system of corruption and devastating flood coverage, this news has received little attention from the media. However, the fact of the matter is that it gives alarming insight into the lack of foresight and planning on behalf of the federal government. The 18th amendment was passed by the National Assembly on April 8, a week later by the Senate and became an act of parliament four days later with the signatures of an overly exuberant President Asif Ali Zardari. Why did it take the government four months to consider setting up the constitutional machinery envisioned by the amendment in the form of a judicial commission and a parliamentary committee?

The ball was in the law ministry’s court and it should have initiated the composition of this commission much earlier as opposed to now writing to the chief justice of Pakistan to nominate a retired judge to be appointed as a member of the judicial commission, and consequently to secretaries of the Pakistan Bar Council and all four provincial bar councils to send their nominations for the appointment as member of the judicial commission. In the absence of a stay order, what justification does the federal government have for this delay? Had the CJP denied this request, the entire dynamic would’ve changed. One has no option but to question the motives and sheer brilliance, one would say, of the executive in general and the law minister in particular. As for the parliamentary committee, ideally the law ministry should have initiated this process by submitting its nominations and asking for feedback.

Consider for a moment, had parliamentarians and lawyers such as SM Zafar, Wasim Sajjad and Raza Rabbani been nominated for this committee, the commission’s integrity would have been beyond challenge. Alas, in a house of 342, the government, it seems, found it hard to choose eight such individuals. To add insult to injury, all commissions and committees set up by the post-18 amendment ‘all powerful’ prime minister have not helped the executive. The implementation committee headed by Raza Rabbani is an example in point, failing to make any timely recommendations to the government. One can only wonder if the circumstances would be any different had Aitzaz Ahsan been defending this ill-fated amendment?

At this stage one must remember that the Supreme Court itself is a creation of the Constitution and cannot go beyond it. The Constitution says henceforth judges will be selected under the dispensation given under Article 175-A — so what exactly has happened now with the extension given to the 32 additional judges of the high courts?

Published in The Express Tribune, September 1^st, 2010.