ISLAMABAD: Supreme Court in its interim order has declared 18th amendment effective while referring back article 175-A of this amendment related to appointment of judges with some recommendations to parliament for review.
A 17-member larger bench of SC presided over by Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry pronounced the interim judgment on Thursday.
The court has not suspend article 175-A which has been introduced in 18th amendment with regard to appointment of judges.
Declaring the 18th amendment effective court observed that irrespective of the fact that petitions are pending hearing in the court against the 18th amendment, all the provisions of 18th amendment which have been challenged in the court have become effective.
According to article 175-A of the constitution and courts observations incorporated therein, CJP being head of judicial commission would propose the names in connection with appointment of judges. Like wise chief justices of respective courts would propose the names of candidates for their appointment in Wafaqi Sharia Court and all the concerned high courts. As CJP is head of Judicial Commission (JC) , he can therefore, convene its meeting when he deems proper. While the meetings of parliamentary committee will be held in closed door and its entire proceedings will be kept secret, therefore, its all record be prepared.
Parliamentary Committee (PC) after according the approval to the recommendations to be sent by JC will send them to the Prime Minister. These approved recommendations would be sent to the president by the prime minister for his orders. In case PC does not agree over these recommendations and rejects them then it will be binding on the committee to give the reasons for rejecting these recommendations . Prime Minister will communicate these causes to CJP while the decision of PC can be challenged in SC.
Postponing the decision on the petitions filed against 18th amendment by the last week of January, 21, the court has directed registrar SC to send copies of court decision to chairman senate, speaker national assembly, Mian Raza Rabbani and law secretary.
Court has maintained in its decision ” we are referring back article 175-A to parliament with our reservations and concerns so that it may review them.
The court observed that judiciary and parliament were correlated to each other. Every institution has to do its own job. But all the institutions have the same job to do under constitutional mandate.
It was said in the petitions filed against the 18th amendment, all the petitioners had expressed their reservations about article 175-A and maintained this article would affect the independence of judiciary.
Appointment of judges through parliamentary committee would promote political influence. Under this article constitutional powers have also been divided. CJP is head of the court but he has only one vote in judicial commission and PC has authority to reject his recommendations. Law minister and attorney general are the representatives of executive and powers have been delegated to them at par with judicial representatives. Debate on judges conduct in the committee meeting will constitute breach of article 68 as the conduct of judges can not be discussed in Majli-e-Shoora as per constitution. Committee will remain incomplete in the absence of assembly. The lawyers had proposed during the arguments that amendment be introduced in article 175-A and these proposals be kept in view that 4 instead of 2 judges be nominated as members of JC. If committee rejects the names proposed by the JC, then the committee should return these rejected names to JC with reasons. Commission should reconsider these names and if it sends the name again then it should be considered final and president should appoint him.
In order to allow the parliament more time to reconsider article 175-A in the light of reservations of court , the case has been adjourned till January, 2011.
Court was of the view it had been left with two options either to announce decision in respect of provisions of 18th amendment which were challenged or to refer back them to parliament. Therefore the court adopted the second option.