The 19th Constitutional Amendment, passed almost unanimously by the National Assembly on Wednesday - only a single vote was cast against the Bill - strikes a fine balance between the judiciary and the legislature, mainly by revising Article 175A introduced by the 18th Amendment.
The draft for the Amendment Bill was finalised by the 26-member Parliamentary Committee on Constitutional Reforms (PCCR) to give effect to the Supreme Court's suggestions, following its hearing of petitions that had questioned constitutionality of some of the provisions made by the 18th Constitutional Amendment. The court was of the view that the newly introduced Article 175A tended to overlook the imperative of ensuring that appointments of judges to superior courts are in accordance with the principles of an independent judiciary and separation of power.
Much to the disappointment of the political cynics, who thought the post-18th Amendment parliament lacks the desired togetherness, the PCCR had not only almost fully complied with the Supreme Court's recommendations, it also secured smooth sailing through the National Assembly, at a time otherwise not conducive to the unanimous passage of laws. That done in the Lower House, easy passage of the 19th Amendment by the Senate is an almost foregone conclusion. Certainly, the revised procedure for judges' appointments would obtain a fully institutionalised relationship between the executive and the judiciary which always tended to get derailed on the issue of the judges' appointment.
The new amendment, when implemented, would see to it that while making appointments would be the executive's right, it would be judiciary's exclusive preserve to make nominations, vindicating the Supreme Court's view that 'institutions may have different roles to play but have the common goals to pursue in accordance with their constitutional mandate'.
Hopefully, by the third week of January 2011, the 19th Amendment would be in place, clearing the way for the Supreme Court to announce its pending verdict on various petitions against the 18th Amendment. The proposed Bill introduces some two dozen changes in six Articles of the Constitution.
The Judicial Commission, which is tasked to nominate the new judges for appointment under Clause 2 of the Article 175A, will now have nine members, the additional two to also come from the judiciary. Of course, the Federal Law Minister, Attorney General and a senior lawyer nominated by the Pakistan Bar Council remain members of the reconstituted commission but the serving judges would have a greater say in nominating new judges - obviously for the fact that they would know the candidates better than its non-judicial segment.
To avoid, a situation where thanks to the intra-legal community politics someone a novice and green may get a seat on the Judicial Commission, the new amendment makes 15-year experience as mandatory for the PBC nominee. But this leverage made available to the judiciary is not unlimited; the PCCR did not agree to the Supreme Court's recommendation that "if the PC (Parliamentary Committee) disagrees with, or rejects any recommendations of the JC, it would give specific reasons...and the same shall be justiciable by the Supreme Court".
However, the rejection would be valid only when made by three-fourths of the majority of the Judicial Commission, and that has to be made within 14 days. The powers of the Chief Justice of Pakistan to appoint ad hoc judges is being withdrawn and transferred to the Judicial Commission. No doubt our judiciary in the higher echelons is often short of full strength but the idea of appointing ad hoc judges tends to clash with the concept of institutionalising this important aspect of the judiciary. Only in exceptional circumstances a few ad hoc appointments may be acceptable, but not as a routine.
If the scrutiny of nominations has been tasked to the serving judges, the parliaments' role of oversight in cases of judges' appointments has been further streamlined. Firstly, instead of the President it would be the Prime Minister's right to make appointments. Then, the conduct of a judge would be open to discussion by the Parliamentary Committee - but not on the floor of the Parliament - as against a complete bar mandated by Article 68. And in case such a discussion leads to rejection of a nomination, the minutes of the meeting have to be recorded and preserved and that a nomination, once rejected, would not be proposed again.
The 19th Amendment also rectifies a serious lacuna carried by the 18th Amendment, in that it did not say who would fill in for the two members of the National Assembly, in case the said House was not in existence by virtue of its dissolution. Under the new amendment the Parliamentary Committee will fill that vacuum and all of its members would come from the Upper House.
It is our hope that the 19th Constitutional Amendment is passed by the Senate and signed by the President with equal promptness and alacrity, streamlining the process of appointments of judges in the higher courts. One important reason for the persisting backlog of cases is some three dozen vacancies in the superior courts. Of course, earlier the near-collapse crisis in the Balochistan High Court, due to vacant positions on the bench, was averted by extending, by one year, the term of the additional judges. But now that the enactment of the 19th Amendment is nearly certain, the whole issue of judges' appointment should be resolved on a permanent footing - to strengthen the much-needed Rule of Law in the country.