Analysis of 18th Amendment judgment

A couple of days ago, I read a news item about the deliberations of members of the Parliamentary Committee on Constitutional Reform regarding the procedure for the appointment of judges. These members are deliberating the proposed changes in the procedure in light of the Supreme Court judgment that deferred the matter to parliament.

It seems that the primary concern of these members is regarding giving the judicial commission the power to overrule the parliamentary committee’s refusal to confirm a nominee of the commission. By doing so, the committee would be rendered powerless, whereas the commission, while exercising this power, would have unfettered discretion in appointing judges of its own choice. On the other hand, those in favour of giving the commission this unbridled power argue that the committee’s refusal in the first place would amount to second-guessing the commission’s judgment about the ability and competence of a particular nominee. Therefore, they argue, the commission should have the final word in appointing judges.

The turf war between the parliament and the judiciary was not expected to end after the Supreme Court decided to defer the 18th Amendment review to the former. But what happened does raise the obvious question of whether one of the order’s objectives, as claimed by some, of saving the system has been, or will be, achieved. (That said, if it was one of the objectives, shouldn’t the judgment have been strictly in accordance with the constitution without taking into account any extraneous considerations such as saving the system?)

Judges interpret and apply laws based on their knowledge and experience to arrive at a fair and impartial judgment. The Supreme Court judges are the bastions of the constitution and in that capacity they are supposed to protect it. Any decision or action that threatens the constitution, or the principles that it was founded on and stands for, should be dealt with clearly and decisively. While deference generally has positive overtones, in some cases, beneath the veneer of deference lies indecision. In my opinion, the delay and indecision only adds an element of legal limbo to the mix of perennial political and economic limbo in Pakistan.

In terms of the substantive issue of judicial review, this judgment has raised further questions: Was the Supreme Court really not certain about whether it had the power to review a constitutional amendment? Or was it absolutely certain that it had the power to review but was not willing to exercise it just to save the system? Or was it sure that it did not have the power to review but was not willing to admit it, at least at this point? Since proceedings have been adjourned till the end of January 2011, we will have to wait another few months for the answers.

I am also surprised and rather confused about the sweeping characterisation of this judgment as a win-win. In view of the adversarial nature of litigation, a court judgment, even if it is an interim order, is in favour of one party and against the other. Strictly speaking, it cannot be termed as a win-win since it is a win for only one party. A settlement, on the other hand, is considered a win-win for both parties since both parties mutually agree upon the final outcome. The paradox is that this judgment is being hailed as a win-win for the parliament and the judiciary. As I understand it, a win-win judgment is simply an oxymoron.

Published in The Express Tribune, November 11^th, 2010.