Clues to this major step towards appeasement were found during the Constitutional Reforms Committee (CRC)’s meeting.
The government’s legal gurus are said to have asked the CRC members during their first meeting after the SC judgement to form “unanimous views” on the changes proposed by the apex court in its provisional verdict.
Sources confirmed that in its preliminary discussion on the court judgment the parliamentary panel also considered a proposal that a new clause should be added in Article 175(A) to consider appointment of only those lawyers as judges of the superior judiciary who were paying taxes.
The sources confirmed to The Express Tribune on authority that the SC reference to the parliament to bring about changes in the criteria to appoint judges would not meet the sorry fate of the National Reconciliation Ordinance (NRO). The latter piece of legislation was not given legal cover by parliament last year and was subsequently returned to the SC for a final judgement.
This time, the sources said, the government – contrary to the public and media perceptions – was in a mood to back these changes as proposed by the SC to keep the system working after deciding not to adopt a confrontational route.
The meeting presided over by Senator Raza Rabbani was attended by Maulana Fazlur Rehman, Dr Babar Awan, Ishaq Dar, Ahsan Iqbal, Afrasiab Khattak, Raja Pervez Ashraf, Haji Adeel, SM Zafar, Shahid Bugti, Laskhar Raisani and others.
A change of heart which might put an end to the ongoing tug-of-war between the government and the judiciary was witnessed when Law Minister Dr Babar Awan gave a briefing to the participants amid an outcry by members of a political party.
Insiders said Awan clearly took a conciliatory line as did Wasim Sajjad. The law minister was invited to brief the committee about the SC judgment, so that the panel could proceed in line with the observations of the law ministry. But to everyone’s surprise, Awan dropped clear hints that the government would like to back those amendments which were proposed by the apex court. Sajjad also pursued the same conciliatory line.
The sources, however, said Senator Haji Adeel raised his voice against what he called the “dictation” by the Supreme Court to the Parliament. He was said to have even commented that the court did not give the final judgment. Rather, it directed the Parliament to bring about the desired changes. The sources said no other member of the committee aired such views when they heard the government ministers backing the changes in the criteria to appoint judges.
Giving background of how a perceptible change occurred in the ministers’ mindset, the sources said it dawned on the PPP legal brains that it would be futile to dispute the changes proposed by the SC when the judges themselves had actually accepted the supremacy of the Parliament by referring the new method to appoint judges through judicial and parliamentary commissions. It was argued in these official meetings that the SC judges could have struck down Article 175-A but they referred it back to the Parliament to make relevant changes part of the constitution and thus showed respect to the institution of parliament.
In this background, the sources said, Awan appeared reconciliatory in his briefing and was even appreciated by the committee members such as Ishaq Dar, Prof Khursheed and Waseem Sajjad.
The sources said that Maulana Fazlur Rehman did not make any comment about the SC judgment but asked some technical questions from the persons giving briefing to the members.
Awan was said to have told the panel that it was always magnanimous on the part of the Parliament to consider points of view of other institutions on legislative matters. Therefore, “we should take this judgment in the parliamentary spirit as the reference was sent to the parliament by the SC” – also a stakeholder as far as the appointment of judges was concerned. Awan is said to have advocated healthy discussion on the SC verdict and consideration of the points raised by the judges in their provisional judgment before tabling a new amendment in parliament to address the apex court’s concerns.
Awan is said to have told the parliamentary panel that the meeting of the judicial commission had already been summoned on November 6 which meant the process to choose judges under the 18th amendment will be set in motion.
During the debate, Ahsan Iqbal and Prof Khursheed emphasised that the judges’ appointment criteria needed more clarity.
An official handout issued after the meeting said: “The meeting noted with satisfaction that the order called for giving effect to Article 175 A of the Constitution in terms of the construction placed thereupon, pending final disposal by the parliament of the recommendations made in the said order. The committee began consideration of the recommendations made in the said order for their appropriate disposal.”
The committee reiterated its commitment to preserve and protect the independence of the judiciary under the constitution, the statement said.
Published in The Express Tribune, November 2nd, 2010.
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