The Supreme Court’s latest judgment on the 18th constitutional amendment is a veritable Sword of Damocles over the head of President Asif Zardari’s government. The irony is that Prime Minister Yusuf Raza Gilani has welcomed it as a “reprieve” of sorts from the clash between the judiciary and executive that has been developing apace since the judges struck down the notorious NRO earlier this year and accepted petitions challenging parliament’s unequivocal and unfettered right to amend the constitution. Consider.
The SC took nearly five months to hear arguments for and against the 18th amendment, focusing in particular over the clauses relating to the mechanism for appointment of judges to the superior courts. After closure, a short or full order was expected. Instead, the court has delivered an “interim” order and postponed a hearing of the case to the end of January 2011. This is unprecedented and extraordinary. Interim orders are normally issued at the start of a case, before the arguments have concluded, and never after the case has been “closed” for judgment. The SC’s intent is thus clear: if its “recommendations” and “directions” in the “interim” order are unheeded by the government and parliament in the next three months, it will strike down elements of the 18th constitutional amendment in its final order next January which will be binding on both!
The interim order has therefore avoided tackling the issue of whether or not the court can, or should, strike down constitutional amendments. If the government backtracks and parliament amends the amendment as directed by the court, the court will have no need to strike down the 18th amendment and make history.
The directions of the court in the interim order can be summarized easily. The judicial commission (JC) for approving judicial appointments currently comprises seven persons – the chief justice of Pakistan (CJP), his two senior-most serving colleagues and a fourth retired judge to be appointed by the CJP; a nominee of the Pakistan Bar Council, the Attorney-General and the Law Minister. In other words, only two out of seven will represent the executive or government. This gives the CJP four out of seven votes at least, and up to five, in the event of a disagreement with the government, which means he can have his say over all appointments. But no, the CJP wants “more”. He wants a fifth colleague judge to be added to the JC so that, in case one of his colleagues becomes a dissenter for one reason or another, he can still rule the roost with a minimum of four judges on his side and at worst face a deadlock if the nominee of the Bar Council decides to also side with the executive.
The court also wants the proposed parliamentary commission (PC) of eight – four each from the opposition and government – to be able to override the decision of the JC (or any deadlock) only on the basis of six out of eight votes, or 3/4th of the membership, which, in any case, would be almost impossible to obtain in view of the historically hostile government-opposition relationship. But that’s not all. The court says the PC should deliberate in secrecy and convey its dissenting view, if any, in writing, giving detailed reasons and evidence for rejecting the decision of the JC in the first place. The nail in the coffin is the court’s final caveat: the PC’s decision is “justiciable”, which means the SC can strike it down if it disagrees with it. In order words, the ability of parliament to hold any judge to account or consider a judge’s suitability for appointment is no more than a snowball’s chance of surviving in the burning fire of hell.
The government has three months in which to amend the amendment to the satisfaction of the SC or brace itself for the far reaching and adverse consequences of any striking-down of the amendment by the SC.
Meanwhile, the SC intends to test the waters with the appointment of nearly 80 judges to the superior judiciary comprising new appointments and confirmations of additional judges on the basis of the current law (Article 175-A) in the 18th amendment. If it has its way, with the newly appointed JC and PC meekly acquiescing in each and every case, it might be lenient when the 18th amendment case is renewed. But if there are some hiccups or gridlocks in the process, then we should expect it to wield the Sword of Damocles without any qualms.
In all likelihood, the SC will also not relent in its obsessive quest to undo Mr Zardari’s immunity as president or stop pushing Mr Gilani to write to the Swiss authorities to reopen the money laundering case against him, on pain of contempt of court. In the event, we should brace ourselves for fireworks much before the end-January deadline on reopening the 18th amendment case. One ominous sign is the SC’s intention to embarrass the government for sanctioning a few Rental Power Projects which appear to be riddled with kickbacks and commissions. The other is the government’s desperate move to cosy up to the Pakistan Muslim League (Q) in anticipation of tremors in parliament preceding an in-house regime change triggered by a clash with the judges.