Article 175-A: Recipe for Disaster

Article 175-A: Recipe for Disaster
Monday, June 07, 2010

The need for writing this article has arisen keeping in view the serious lack of proper understanding of the submissions made by me before the Honourable Supreme Court of Pakistan during its four days’ hearing of this case so far. At no occasion did come under discussion any adverse comments against the parliamentarians with regard to their dignity, importance of their representative character; their alleged ignorance or their lack of competence as an issue before the Honourable Supreme Court which itself is very conscious of any unbecoming remarks about any state institution or even a private individual. Passing of unbecoming remarks even militates against the decorum of the court, professional ethics as also the dignity of senior standing at the apex court. As such the nature of this synopsis of submissions made in the Supreme Court over the four days is aimed at dispelling any contrary views and unfounded doubts.

On the first day of hearing the counsel for the Federation had raised objections to the constitution of the bench and it was submitted that one of the judges was not included and also that the chief justice being the beneficiary of Article 175-A should not sit on the bench. These objections were replied precisely and professionally:

  1. “Nobody had claimed the court to be a full court and the objection was ill-founded. It was the largest Bench equal to the total strength of the Supreme Court i.e. 17 Honourable Judges.”
  1. “The Federation had singled out the Honourable chief justice for praying his exclusion from the bench in as much as there were two other senior most judges who are “members” of the Commission under Article 175-A. So the basis for the pick and choose and the reason why chief justice alone was not acceptable to the Federation whereas two other Honourable Judges were not objected to, was discriminatory and unsustainable.” Under the settled jurisprudence of this country and for that matter of the whole world the chief justice as head of the judiciary constitutes benches where benches have to hear the cases. This is not applicable to the USA where all nine judges hear cases sitting together.

On the second day of hearing an exercise was made to compare the submissions of the petitioner in the petition in contrast with the reply filed by the Federation where no cavil was joined to the case as set out by the petitioner. There was hardly a ground which was seriously contested by the Federation and the only reply submitted was “irrelevant”, “inapplicable” and “incorrect”. Towards the end of the second day of the submissions the attention of the Supreme Court was invited to the salient features and the foundational structure of our Constitution as unfolded by the founding fathers; in that, a speech of first Prime Minister of Pakistan Quaid-e-Millat Liaquat Ali Khan dated March 7, 1949, was read out. The speech had provided emphasis on securing an independent judiciary as a fundamental and foremost objective of the framing of the constitution. This resolution was passed on March 12, 1949, and had been part of all the four constitutions. However, it was made an effective part of the Constitution as Article 2A vide P.O. 14 of 1985.

The provisions relating to the appointment of judges were in sharp conflict and deviation from the Government of India Act, 1935. The first constitution of 1956, the second constitution framed by dictator Field Marshal Ayub Khan, the interim constitution of 1972 and the consensus Constitution of 1973 contained similar provisions with regard to the appointment of judges to take place in consultation with the Chief Justice of Pakistan. The word “consultation” had subsequently received interpretation in “Al-Jehad Trust Case” as binding and having primacy which was in line with all other countries where the judicial appointments take place with the object of keeping the judiciary separate from the executive and independent.

It was submitted before the Apex Court that the founding fathers of the Constitution had conferred remarkably wide and varied jurisdiction on the Supreme Court. It also was not included in Article 7 of the Constitution which defined the word “state”. The Constitution of Pakistan vests in Supreme Court of Pakistan the jurisdiction to resolve disputes between federating units and the Federation, federating units inter se, between man and the state and between individuals; in addition thereto it had been conferred upon the advisory jurisdiction and the government could invoke this jurisdiction and has, in fact, invoked this jurisdiction several times seeking an opinion on an issue of national importance. It was submitted that an independent judiciary which has to be totally separate from the executive, such mandate provided by the founding fathers of 1973 Constitution under the dynamic leadership of Zulfikar Ali Bhutto wherein even the period of 14 years had been provided. The executive and legislature are inter-connected because the executive assumes powers by virtue of its majority in the Parliament. Therefore, unfortunately, the separation process was delayed and was not completed within 14 years as mandated by the Constitution. By virtue of P.O. 14 of 1985 another period of five years was added to this timeframe and the Supreme Court of Pakistan refused to extend this period when a request in this behalf was made. It was submitted before the Court that the independence of judiciary and separation of judiciary from the executive as also the power of judicial review and administrative and legislative actions including constitutional amendments were the inherent and salient features of the Constitution which in India and some other countries are known as the basic features.

The committee for the constitutional reforms set up by the speaker of the National Assembly after the joint address of the president of Pakistan to the joint session of the parliament was mandated to introduce the Charter of Democracy in the Constitution with regard to the independence of the judiciary. The precise objections to the constitution of the judicial commission were that it goes at the very root of the constitutional basis for separation and independence of the judiciary from the executive. It makes minister for Law, Justice and Human Rights Division as a co-equal member with the chief justice of Pakistan along with another representative of the Federation i.e. the attorney general of Pakistan who is the first counsel of the Federation. Likewise, a member of the bar council- an indirectly elected body of the lawyers which regulates the legal profession in so far as the enrolment of new advocates and their disciplinary issues are concerned. The bar associations in fact are the institutions which act as the vanguard of movements launched by the lawyers and have their annual elections representing the aspirations of the legal fraternity.

Another objection was that there is no procedure, who shall introduce or give requisition for the nomination of judges. It has been kept confused deliberately and in order to end the ages-old tradition where it had been the sole prerogative of the head of the judiciary to give requisition of the vacancies and the requirement of judges in each High Court and Supreme Court keeping in view the statutory provisions and the sanctioned strength. Article 175-A violates the immunity Article 2A, Article 175(3) and Article 68 placing restriction of discussion on Majlis-e-Shoora with respect to the conduct of any judge of the Supreme Court or a high court in the discharge of his duties.

When the question of elevation of a judge of a high court to SC shall arise, the parliamentary committee is bound to violate this provision by discussing his conduct in all respects to approve or disapprove his selection. The following arguments were advanced specifically with regard to Article 175(A): The appointment of judges through judicial commission was neither necessary nor expedient. Instead of removing the vice of executive interference, which has vitiated the working of the present system, the presence of the law minister in the judicial commission elevates him to the position of a co-equal member with the equal right of vote in the nomination process of the judicial commission.

The law minister has been made an equal party when he is not equipped to offer, any view with regard to the merit, ability, competence, integrity and suitability of the candidates for appointment, as such the scope of executive interference is enhanced.

Sir Harry Gibbs, former Chief Justice of Australia observed in an Article in (1987) Australian Law Judicial pages 7 and 11 that “Judicial commissions, advisory committees, and procedures for consultation will all be useless unless there exists, among the politicians of all parties, a realization that the interest of the community requires that neither political nor personal patronage nor a desire to placate any section of a society, should play any part in making judicial appointments.”

The manner in which the parliamentary committee is to be constituted under Article 175(A) could possibly work in a country with two party system. In Pakistan, there are almost seventy parties registered with the Election Commission of Pakistan and amongst them, there are fourteen parties represented in the present parliament. There exists a coalition government and is dependant upon the cooperation of all coalition partners. Similarly, the constitution of a parliamentary committee is also dependant upon the cooperation of opposition. It is possible that in circumstances of political conflict or deadlock, the parliamentary committee may not be constituted at all or its constitution may be delayed thereby delaying the appointment process. No qualification is laid down in Article 175 (A) of the Constitution for the members of the parliamentary committee, who are expected to select future judges. The principal of seniority for the appointment of the CJ of the high court has been ended. A person could be selected as a judge of the high court today and could be made the chief justice next moment.

Members of the parliamentary committee representing a particular party shall be bound to follow their respective party leaders. Article 175-A (10) read with Article 63-A of the Constitution indirectly gives the appointment authority to the party heads which is totally alien to the scheme of the Constitution, and as such could be termed unworkable. The unanimous verdict of judicial commission can be vetoed by six of eight members of a parliamentary committee. Article 175(A) is going to politicize the whole process of appointment of judges. The old process guaranteed dignity for candidates, while the new process will expose the suitability of the persons considered for new appointments to the public because the members of the parliament might discuss the credentials of the candidates in public. This may humiliate the candidates.

Concluding the arguments it was reiterated that reforming a constitution is different from re-forming a constitution. The latter, one might say, extends beyond incoherence and implicates identity. Aristotle, while speaking on polis, asked, “On what principles ought we to say that a state has retained its identity, or, conversely, that it has lost its identity and become a different state?” His answer was that a polis’s identity changes when the constitution (referring to more than just a document) changes as the result of a disruption in its essential commitments, much as a chorus is a different chorus when it appears in a tragedy rather than a comedy. According to the Oxford English Dictionary, to speak of identity is to refer to that condition or fact that makes something unique, especially as a continuous unchanging property throughout its existence.

There is a distinction between the original constituent power and derived constituent power. Since the power to amend the Constitution has been granted by the Constitution and is derived from it, it must not be considered as a real constituent power but a constituted power. It follows that whereas the constituent power that was used to make the original Constitution, was necessarily unlimited. The derived constituent power is inherently limited in as much as it excludes the ability to make a total change or write an entirely new constitution or even to amend the basic features of the Constitution. If any of the constituent powers were available to amend the basic features of the Constitution, it would tend to augment its own competences indefinitely and concentrate all powers in its own hands which would bring an end to separation of powers i.e. an end to the constitution, since a constitution is nothing but a separation of powers. Besides these submissions, nothing was said about the parliamentarians nor it was necessary to do so. Nothing was said beyond the mischief of Article 175-A. Therefore, the misunderstanding that the parliament has been criticized or its learned members have been called names is absolutely false, frivolous and I would invite any record to the contrary from any quarter.

We are fighting a constitutional case on purely jurisprudential touch tones being practiced all over the world and to consider it different is in fact a conscious effort to belittle the role of the judiciary assigned to this organ which has the duty to oversee the working of the executive and the legislature as an obligation placed on it by the Constitution.