EDITORIAL: Ruling Pakistan Tehreek-e-Insaf and its principal political opposition may differ on anything under the sky but where they don’t differ and share the common grief is the disqualification of their topnotch leaders Jahangir Khan Tareen and Nawaz Sharif. So, they have joined hands to overcome whatever impediment to their way is, and that obstacle is the Constitution of Pakistan. On Tuesday, the Parliamentary Panel on Appointment of Superior Judiciary unanimously decided to go for constitutional amendments, particularly the “original jurisdiction” of the Supreme Court under Article 184(3). Since the said Article doesn’t provide for appeal against its application, the panel has proposed that at least three judges of the apex court would exercise the suo motu powers in human rights cases. Their verdict would be appealable to a five-member or larger bench within 30 days, and thatbench shall decide the appeal within 60 days. If an appeal against an order under this article has been made then the order shall not be implemented pending the decision of the appeal. The panel that proposed this amendment comprises members from both sides of political divide in both houses. But for reasons yet to be known soon after saying ‘yes’ in the panel meeting, PTI’s Azam Swati and Ali Muhammad Khan issued a clarification, stating that the panel “did not approve any amendment to the Constitution since it was the prerogative of the parliament”. In fact, there was no such talk to even suggeest that the Constitution had been amended; it was a normal course of lawmaking. But their ‘clarification’ tends to suggest that the entire exercise – for whatever reasons – was a stillborn baby.
One other issue that bothered the parliamentary penal was the debate in the legal fraternity on the recent and proposed elevation of judges to the Supreme Court. Should elevation be on the basis of merit or seniority as the central consideration for promotion to the Supreme Court? The parliamentary panel considered its pros and cons and finally voted in favour of ‘seniority’. Under its proposed amendment to Article 175(3), the elevation to the Supreme Court “will be made in accordance with their seniority which shall be determined with reference to their date of appointment as a judge of a high court”. The panel also discussed Article 175-A dealing with the manner of appointment of judges of the Supreme Court and composition of the Supreme Judicial Council. But the panel left it undecided, saying it (this matter) would be taken up at the next meeting of the panel. It also approved a “recommendation” that retirement age of a high court judge would be enhanced from current 62 years to 65 years. As for reference under Article 209 against a judge of the superior judiciary, the panel proposed it would be decided by the Supreme Judicial Council within 90 days.
Will the amendment proposals of the parliamentary panel stave off the brewing storm among the legal fraternity over the issue of judges’ elevation? Unfortunately, however, this question has no easy answer. Should the present practice persist the lawyers’ fraternity appears prepared to launch protests throughout the country. But efforts are afoot in that respect--the latest being a letter by Attorney General for Pakistan (AGP), Khalid Jawad Khan. The AGP has sought the help of the country’s premier bar councils and associations to help explore common ground to avoid disharmony on the process of judges’ appointments. He has asked the legal fraternity to provide their input which he said shall be placed before the Judicial Commission of Pakistan (JCP) for its consideration. According to him, the ideal principle for appointment should be a “blend of seniority and merit”. Let us wait how the concerned bars and associations react to his plea which on the face of it is an admixture of fact and fiction.
Copyright Business Recorder, 2021