The 18th Amendment Order – more questions than answers

The short and interim order has disappointed many quarters that had been lobbying for a grand showdown between the judiciary and the parliament. Institutional conflicts could engineer systemic breakdowns. However, the apex court has avoided the route of appeasing its core constituency – the activist lawyers and bars – which for some odd reasons have been arguing for a governance paradigm that locates judicial dominance at its centre. Pakistan’s quest for parliamentary democracy has sought representative rule and no unelected institution, howsoever effective or popular, can appropriate that space. The interim order on the petitions challenging the 18th Amendment to the Constitution has tacitly acknowledged this reality.

The bone of contention in this saga has been the insertion of Article 175-A which revised the mode of appointments in the superior courts by introducing two broad based fora – a Judicial Commission and a Parliamentary Committee – to make the process of appointing judges inclusive, less discretionary and transparent. Several other new clauses were also challenged but Article 175-A was the subject of much debate and discussion as a few purists from the lawyers’ movement deemed it to be against the Independence of the judiciary as enshrined in the Constitution.

The decision also comes in the wake of an ongoing crisis comprising judiciary-executive collision on a number of issues. In the past two years, for right or wrong reasons, almost every executive decision of import has been challenged in the courts, thereby creating a duality of evil versus the good in terms of decision-making. Let it be clear that this is not the reality perhaps. It is a perception carefully crafted by the media and sections of the opposition who have strategized to use legality and judicial activism as mechanisms to settle scores with the ruling party and by extension the coalition. The court has, by and large, acted with judicial propriety and has avoided the brinkmanship suggested in TV talk shows and belligerent political statements.

However, the four-month long hearing of the petitions against the 18th Amendment and the time that the Court took in announcing the interim order have raised several concerns. The powers of the court to strike down or amend constitutional provisions were discussed threadbare sometimes in an informed manner but most of the times in a partisan and political manner. Similarly, the obiter dicta on an undefined and unsettled issue of the basic structure of Pakistan’s all-weather Constitution were not encouraging.

Now that the order is out, it is essential to review what are the implications for the thorny issues of constitutionalism, political stability and rule of law in the country. The 18-page long order exclusively discussed Article 175-A on the appointment of judges. The Supreme Court’s direction in effect states that the judicial appointment process under the new Article 175-A should resemble old process even when filtered through the Judicial Commission and the Parliamentary Committee. In the previous mode of appointments, the chief justices of the Supreme Court and the high courts were the decision makers, and their nominations could not be ignored by the prime minister/president without giving reasons.

Through the new order, the judiciary has jealously guarded its powers to appoint judges, which in a way defeats the purpose of the new method of appointment, which called for a broad-based selection process, and the involvement of the parliament given the international best practices devised by democracies.

After the judgment, the names of potential candidates will be ‘initiated’ by the chief justices, while the Chief Justice of Pakistan would ‘regulate’ the meetings and affairs of the Judicial Commission. Intriguingly, the Parliamentary Committee will hold its proceedings in camera and, if a candidate forwarded by the Judicial Commission is rejected, the Parliamentary Committee will have to register its reasons (justiciable by the SC) for not doing so. Critics have called this putting old wine in new bottles and a dilution of the spirit of Article 175A approved through consensus in the parliament. The matter has been referred back to the parliament which by itself is an extraordinary a step as there is no explicit or implicit power of the court to tell the parliament what to do.

More questions than answers: It remains unclear if the other clauses challenged in over two-dozen petitions have been settled or not. Thus the gray area remains. This implies that the unclear fate of the new Articles will evoke partisan criticism and as some commentators have suggested keep the Damocles’ Sword over the parliament. The larger implication will be that the legitimacy of the 18th Amendment as a duly deliberated and passed constitutional change will be called into question, thereby diminishing the central concept of political transformation and decentralisation from the federation to the provinces.

Separation of powers: There is a settled legal doctrine in our Constitution. The organs of the state have clear mandates and jurisdictions. Legal experts have pointed out that referring a matter to the parliament – the originator of the Constitution – by the Judiciary is akin to overstepping its mandate. True that the court has the power to review constitutional amendments and interpret them but it does not have any inherent power to amend the Constitution. The directives to the parliament in how it should operationalise its scheme are unprecedented. The working of a Parliamentary Committee is the exclusive mandate of the parliament and in any case the rules of business for the committee for appointing judges had to be devised. By telling the elected representatives what to do, the conventions on parliamentary democracy are challenged.

Transparency in governance? The insistence to hold in-camera proceedings of the parliamentary committee negates the principle of transparency, which is central to the concept of good governance. Why should the public not be made aware of the deliberations of their representatives about who would sit on judgment at the taxpayers’ expense and whether the appointees are fully qualified or not? In several jurisdictions (let’s not talk about India here when it suits our biases) parliaments are getting greater role in selection of judges. The fear of semi-literate MNAs (often with fake degrees) judging the judges-to-be is pointless. If this were the case, we should discard democracy as the Generals have continued to do so in our history.

Minimizing discretionary powers: Whether it is the executive or the judiciary, discretionary power leads to sub-optimal decisions. Absolute powers in the hands of the Prime Ministers, Chief Justices and others state functionaries are at variance with the concept of inclusive governance. Thus, the widening of the decision-making process through commissions and opinions of a wide range of stakeholders is most desirable. It is hoped that the parliament and the courts will find a way out when this issue is finally resolved next year.

Political instability will grow: Given the long adjournment and unanswered questions, the uncertainty will grow and the warring politicians and forces that want democracy to be scuttled will continue to use this period for tactical games against the Parliament and the civilian government. This is not the intent of Supreme Court, which has acted wisely in the given circumstances. But such an unintended consequence will be unfortunate for the country and its civilian governance.

At a time when the crises facing Pakistan have snowballed into a battle for survival, such developments will be tragic. It is time the parliament and the executive took a pragmatic view of the situation without compromising on the separation of powers. This will not be an easy job and shall be a tightrope walk between constitutionalism and political compromises. Let’s hope that the parliament is upto the challenges and the Supreme Court continues to manifest its concern for the democratic system.

One simple fact is paramount: the interest, independence and efficacy of civilian institutions are inextricably linked to a healthy evolution of democratic governance. Any diversion or collision will plunge us into a vortex of chaos and grave existential danger.

A version of this piece appeared in the NEWS

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