Thursday, October 21, 2010
Verdict on 18th Amendment
Chief Justice of Pakistan Justice Iftikhar Muhammed Chaudhry read out the verdict that says
Article175-A of the Constitution will be sent back to the Parliament. This article is about 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. This lenthy hearing, spanning more than four months, starting on May 24 and concluding on September 30. 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.
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.
As verdict on the amendment has come to lioght, nation will wait and see how the government reacts, because earlier Government paid no attention to the decisions of the court and acted its own will. Seems goivernment may dig out some grounds for non implementation. Lert us wait see what the government is going to do and what the leaders of PPP say and issue statements about the verdict.