In an apparent climb-down in its faceoff with government, Pakistan's Supreme Court asked Parliament to review some controversial provisions of a key constitutional reforms package, including one on appointment of top judges, instead of striking them down as demanded by several petitioners.
In a short order, a 17-judge bench headed by Chief Justice Iftikhar Chaudhry said several provisions of the 18th Constitutional amendment should be re-examined by Parliament. The bench adjourned the batch of petitions challenging the 18th constitutional amendment, passed by a two-thirds majority in the National Assembly and Senate earlier this year, till the last week of January 2011 so that Parliament could review certain provisions.
In recent weeks, the apex court has been engaged in a tense standoff with the Pakistan Peoples Party-led government over various issues, including a move to reopen graft cases in Switzerland against President Asif Ali Zardari and media reports that the government was planning to sack some judges.
The government has refused to revive the cases against Zardari, saying the President enjoys immunity from prosecution. Prime Minister Yousuf Raza Gilani refused to provide the apex court a signed statement that his government had no plans to sack any judges, saying he had already denied media reports in this regard.
The batch of petitions had asked the Supreme Court to strike down the 18th Constitutional amendment, especially a provision that states that members of the superior judiciary will be appointed through a process involving a Judicial Commission headed by the Chief Justice and a Parliament Committee.
Most petitioners had objected to the veto powers given to the Parliamentary Committee to reject the Judicial Commission's recommendations. Referring to the petitions, the bench said: "The court at this stage would not like to express its opinion on the merits of the issues raised and arguments addressed and would rather, in the first instance, defer to the parliamentary opinion (on the issue of appointing judges) on reconsideration by it in terms of this order."
Experts said this was significant as Prime Minister Gilani, in his address to the nation, had said all institutions of the state, including the judiciary, would have to respect each other.
However, the bench pointed out that "serious apprehensions" had been expressed that the provision for appointing judges "may compromise judicial independence" and this required "serious consideration." The bench also noted that it did not consider the sovereignty of Parliament and judicial independence as "competing values."
Both institutions are "vital and indispensable" and they "do not vie but rather complement each other."The apex court laid down some guidelines for the process of appointing judges, saying the Chief Justice will convene and conduct meetings of the Judicial Commission and that the proceedings of the Parliamentary Committee should be held in-camera.
The parliamentary panel will have to give specific reasons if it disagrees with or rejects any recommendation of the Judicial Commission, the order said. During the hearing of the case, government lawyers defended the 18th amendment, mainly arguing that Parliament has the supreme right to amend the Constitution and no institution can undo such moves.
Earlier, the apex court had on September 30 reserved its verdict after over four months of hearings on 22 petitions challenging various aspects of the 18th amendment. The petitions also challenged the renaming of North West Frontier Province as Khyber Pakhtunkhwa, deletion of Constitutional Article 17(4) relating to elections in political parties and insertion of Article 63-A empowering heads of parties to have a final say in case of defections.
