Hearing the petitions against certain provisions of the 18th Amendment, the Supreme Court made the observations that should ease some of the concerns of the federal government. As CJ Iftikhar Muhammad Chaudhry put it, the apex court wants to resolve some of the practical difficulties emerging out of the amendment rather than upset the system.
The Attorney General was also told that the court would welcome Senator Raza Rabbani who had chaired the committee that drafted the 18th Amendment to answer the court's queries. The court directed him to prepare a questionnaire and send it to Senator Rabbani for filing a detailed reply regarding the consultation process for the judges' appointments in the superior courts. The Chief Justice said that a date would be fixed to hear Senator Rabbani.
Soon after the passage of the 18th Amendment bill into law, practical difficulties began to surface. This was expected in view of the haste with which the bill was passed by an enthusiastic parliament. While the Raza Rabbani committee took nine months, from July 2009 to April 2010, to debate nearly a hundred amendments that were to be incorporated in the constitution, many had expected that parliament would thoroughly debate the draft to remove any possible lacuna in the document. This was necessary because decisions had been taken on a number of vital issues, including the renaming of the NWFP, repeal of the concurrent list, transfer of crucial powers from the Presidency to Prime Minister House and the procedure of the appointment of the judges of the superior courts.
It was all the more necessary to hold a thorough debate as some of these issues had been mired in controversy. For instance, negotiations between PML-N and PPP had continued till the last day on the matter of the appointment of judges, and a number of amendments were made in the Rabbani committee's original proposals at the eleventh hour. Similarly, there were sharp differences on the issue of giving a new name to the NWFP. The Q-League opposed it, while the NWFP chapter of the PML-N was divided over it. A number of the latter's MNAs from Hazara had staged a walk-out in the National Assembly on the issue. The subsequent agitation and the still continuing controversy on the new name could have been avoided if the amendments had been thoroughly discussed and various suggestions considered in the parliament.
On account of a desire for change and full confidence in the committee, the National Assembly passed the 18th Amendment draft within a week of its being presented to the Speaker. While voting was conducted on every clause, separate positive votes cast for each of the proposed 18th Amendment bill's 102 clauses ranged between 255 and 289, which was much more than the required 228 votes, or two-thirds majority of the 342-seat house. It was not much different in the Senate either, where the bill was passed on April 15 after brief discussion. Apparently few were willing to be seen to be throwing a spanner in the works. Some of the Senators called renaming NWFP a sensitive issue as by now, an agitation was already afoot in Hazara.
They, too, however hoped that if needed, a 19th amendment could resolve the issue. On April 19, the President put his signature on the new bill making 18th Amendment a part of the constitution. While both PPP and PML-N had jointly decided the constitution of the commission for the appointment of judges of the superior courts, the clauses dealing with it were challenged in the SC five days after the Senate passed it. It was maintained that the amendment was made for political gains. Soon, a number of other constitutional petitions were also filed challenging the provisions regarding the appointment of superior judiciary. Currently, there are 21 petitions challenging different aspects of the amendment. As the new formula of the appointment of judges is implemented, more petitions are likely to be filed.
There is a need on the part of the government to realise that the difficulties faced by the SC are real and they need to be removed if the system is to function peacefully. Hopefully Senator Rabbani would appear before the court with answers to the questions being raised. Instead of making it a point of honour to defend the weak points of the legislation, the government should come to the court with an open mind. In case a 19th amendment is needed, there should be no hesitation to bring it. However, any such move should be made after full preparation and a full-fledged discussion in both houses of the parliament.