Turf tussles

Talking to journalists in Lahore the other day, Prime Minister Syed Yousuf Raza Gilani averred that no institution except the Parliament has the right to rewrite the Constitution, and that all institutions should work within their ambit. Of course, there can be no two opinions on that in any functioning democracy only the Parliament has the exclusive privilege to write or amend the Constitution.
However, this is not an unfettered privilege. While the Parliament has the exclusive right to amend the Constitution, legislators cannot 'rewrite' it in a way that militates against or seeks to change its basic structure. Similarly, there is little room for disagreement with the Prime Minister's assertion that the state institutions - namely the executive, legislature and judiciary - should work within their respective spheres of responsibility.
While it is for the Parliament to legislate or to amend the Constitution when need be, it is the judiciary's sole prerogative to interpret and expound the Constitution, and assign a meaning to it. What also comes under judiciary's domain is its sole responsibility to determine whether or not a particular piece of legislation or amendment is violative of or aimed at destroying Constitution's basic structure.
The context of the PM's remarks is the ongoing tussle between the Parliament and the judiciary that began with the Supreme Court expressing dissatisfaction with the 18th Amendment's provision concerning judicial appointments. It led to the 19th Amendment, yet turf battles remain to be settled. The latest issue of disagreement arose last month when a newly established constitutional body, Judicial Commission (JC), recommended a one-year extension in the service of six judges of the Lahore and Sindh high courts, and the relevant parliamentary committee rejected the same.
Last Friday, a four-member SC bench overturned the committee's decision, directing the government to issue a notification in line with the Commission's recommendation. That is what prompted the Prime Minister to underscore the need for the state institutions to work within their respective domains.
Considering that the state institutions have emerged only recently from under the shadows of a military dictatorship to begin the democratic process anew, disagreements and disputes like the present one are not something to worry about. Regarding the issue at hand, the fact of the matter is that there is no one set system of judicial appointments in democracies. In some countries the subject is left entirely to the judiciary to decide; in others parliament has an oversight role.
Our latest constitutional amendments sought to put in place a procedure that is a mix of the two prevalent practices. The judiciary though has valid concerns about politicisation of the appointments/extensions process. It has been convincingly argued for a while that the parliamentary committee could defame a candidate for political reasons, and hence if it had justiciable reasons to reject the Judicial Commission's recommendations, these should be referred back to the Commission and not discussed in public.
And equally important, that the Judicial Commission should have a meaningful part in the appointments/service extension of judges. None of this amounts to infringement of the Parliament's domain. While asserting its position, the judiciary though ought to acknowledge the legislative branch's role in the affair.