18th Amendment Judicial Commission and the Supreme Court of Pakistan

By Justice ® Syed Manzoor Gilani

Article 175-A introduced through 18^th Amendment in the Constitution subjects the appointments of Judges of the Supreme Court and High Courts of Pakistan to triple politico-executive checks. Firstly: under Clause (2) of Art 175-A, the Commission for appointment of Judges shall include Federal Minister for Law and Justice and Attorney General of Pakistan, both of whom are members of executive and in case of appointment of Judges in the High Court, the Commission shall also include the Provincial Law Minister. Secondly; the encroachment is at the level of Parliamentary Committee.  The recommendations made by the Commission are subjected to scrutiny of Committee under Clause (8) of Art 175-A consisting of eight members of Parliament nominated in equal numbers by the Leader of the House and the Leader of Opposition (Prime Minister in shadow with the status of Senior Minister). The Secretary of the Committee is the Secretary of Senate, who is also a member of the executive and nucleus of activities under the directions of the government. The committee has a discretion to confirm or  refuse the nomination made by the Commission in view of the word “may” used in clause (7) of Art 175-A, thus paving the way to undo that which may have some semblance of legitimacy given the participation of Chief Justice and Judges of the superior courts in the Committee. Prevarication, politicization and manipulation is clearly comprehendable given composition and discretion of Committee.

The third and final stage of executive encroachment is appointment of nominees by the President under clause (13) of art 175-A. This clause is to be read in conjunction with Art 48 of the Constitution under which the President is bound to act on the advice of the Prime Minister in performance of his functions. The appointment being a nondiscretionary function of the President is subject to advice of the Prime Minister. This is the climax of executive high handedness in the judicial appointments out rightly impairing the independence of judiciary at the very out set i.e. appointment of Judges which is the hallmark of independence of judiciary.

Given the rule of seniority, the appointment of Chief Justice of  Pakistan is excluded from the purview of the Commission and Committee in view of clause (3) of Art 175-A, (so for so good), but he equally falls within the definition of Judge under Art 260 of the Constitution, while the appointment of Chief Justice of High Court is subjected to the process of the Commission. Is it not an anomaly? I’ll not comment given the pendency of the matter in the Supreme Court of Pakistan.

The powers of the Parliament are very clearly spelt out in Art 70 of the Constitution i.e. to make law on any mater in the federal legislative list. Each house of the parliament has the power to make the rules for regulating the procedure and conduct of business of the house. Committees of the house are also constituted by the house itself for regulating its business. Appointment of Judges or for that matter, appointments in the civil service is none of the business of any house of the parliament. Judicature or appointments therein is a separate part of the Constitution, not a matter relating to the business of any house of the parliament authorized to make or oversee the appointments in the judiciary under Art 70 of the Constitution. Wherefrom stems the authority to constitute the committee for such appointments?

As to whether any amendment made in the Constitution can be truck down by the Supreme Court? Art 239 (5) of the Constitution specifically provides that “no amendment in the Constitution shall be called in question in any court on any ground whatsoever”.

Plain reading of words of the Article exclude the “process of calling in question any amendment in the Constitution”, not the right of a citizen to invoke the jurisdiction of the court or the power of the Court to strike down an amendment in the Constitution if it militates against the spirit and basic structure of the Constitution. Right of a citizen and the powers of the Court are regulated by Art 184(3) or 199 of the Constitution, as the case may be, and none of these Articles excludes the right of a citizen or the power of the Supreme Court to challenge or examine an amendment in the Constitution on the touchstone of the basic structure or spirit of the Constitution. The purpose of amendment is to remove ambiguity or advance the cause of law in which amendment is made. Whether the relevant amendment advances the cause of the constituent assembly which enshrined the relevant chapter or retards and thwarts the very essence of the relevant part of the Constitution instead of removing ambiguity, or, as in the present case, makes an independent organ of the Constitution (Judiciary) subservient to the other organs of the Constitution, all of whom have different, distinct and independent fields of their operation.

Introduction of Art 175-A, short of executive authorities in the judicial Commission under Clause (2) and, process of parliamentary committee as a whole under Clauses (8) to (12), appears advancing the purpose of transparent induction in the judiciary by making the consultation process broad based instead of being monopolized by one person i.e. the Chief Justice the proposed amendment to this extent is inconformity with the constitutional scheme, hence, does not appear destructive of Constitution. Being separable from each other the amended provisions require to be upheld to the extent of Clause (2), short of executive authorities as discussed above. Similarly Clauses (8) to (12) being against the spirit of Part VII of the Constitution are ultra vires. Recommendations by the Commission require to be made binding on the President subject to antecedents of the nominees.

Article 184 (3) which infact, is an extention of Art 199 of the Constitution, Clause (a) (11) of which, authorize the court to “declare any act done or proceedings taken by any person as without lawful authority”. Under Clause (5) of Art 199, the word “person” unequivocally includes in itself “any body politic or corporate, any authority of or under the control of the federal government or of a provincial government and any court or tribunal, other than the Supreme Court, or a High Court or a Court or tribunal established under a law relating to the armed forces”.

Parliament is unambiguously a body politic of the State and falls within the definition of the term “State” under Art 7 of the Constitution, hence its actions and proceedings are not immune from the judicial review under Art 199 or 184(3) of the Constitution, be it an executive or legislative action.

Supreme Court of India has decided plethora of cases discussing the limits and competence of the parliament to amend the Constitution and authority of the Supreme Court to declare the amendment ultravires, if found against the basic structure or spirit of the Constitution. I may refer here a few of them i.e. L. C.Golak Nath and others   v.    State of Punjab and another (AIR 1967 SC-1643); Kesavanand  v.   State of Karala,  (AIR 1973 SC-1461); Indra         v.       Raj Narian (AIR 1975 SC-2299); and Minerva Mills v.          Union of India (AIR 1980 SC-1789). These cases have authoritatively dilated upon the matter and the consensus is that Parliament is not Scot free in amending the Constitution and the Supreme Court is authorized to declare an amendment in the Constitution as ultra vires if it militates against the spirit or structure of the Constitution.

(The writer can  be contacted at: manzoorgilani@hotmail.com )