A propitious compromise

The writer is a lawyer based in Islamabad
The interim order in petitions challenging the 18th Constitutional Amendment has created an opportunity for parliament to help develop cooperative institutional norms within our fledgling democracy and prevent the emergence of circumstances that encourage the Supreme Court to formally endorse the basic structure theory – a fictional concept that will pollute our constitutional jurisprudence for times to come. By identifying concerns over how the 18th Amendment could impinge on the independence of judiciary, making recommendations on how to prevent that from happening and throwing the ball back in parliament's court, the Supreme Court has established that institutions and individuals are capable of exercising restraint even where self-interest is at stake.
Legal purists and strict constructionists of the Constitution can criticize the interim ruling. There has been a long-standing debate amongst legal philosophers about what judges do in courts: do they determine what the law is or do they say what it ought to be? A purist can thus convincingly argue that by deliberating upon and recommending what the law ought to be, the Supreme Court's interim order falls beyond the red line. The interim order doesn't determine the source of the apex's court authority to undertake judicial review of a constitutional amendment duly approved by parliament – as opposed to judicial review of ordinary legislation to determine its compatibility with the Constitution itself – and strike down new constitutional provisions found undesirable.
Let us acknowledge however that theoretical debates do not necessarily shape the reality of what transpires in courts. The line dividing a discussion over what the law is and what it ought to be is not all that bright either. The responsibility of interpreting written text – be it scriptural or legal – falls within a zone of discretion. This automatically gives the

interpreter some leeway in determining what words mean. Then there is the whole business of interpreting the spirit of a law, which makes the interpretive project even more subjective. When the Constitution gives the courts the right to interpret what the law is, it also gives them soft discretion. Whether or not such discretion has been abused in any instance is determined in the immediate term by public opinion and in the long term by subsequent judgments of courts.
While courts are supposed to block out all extraneous considerations in determining legal controversies, it is a fact of life that political context matters. For example, in the Al Jihad case the Supreme Court for all practical purposes interpreted the need to consult with the chief justice over appointment of judges as seeking his consent. And the ruling was still hailed as epochal for it was seen as promoting the desirable cause of separating the judiciary from the executive. Likewise, Article 175-A incorporated into the Constitution through the 18th Amendment changes the manner in which judges are to be appointed. While it is definitely an improvement over the previous system wherein the Chief Justice monopolised the judicial appointment process, the interim order raises some genuine concerns as well.
The court's fundamental concerns or apprehensions seem to be twofold. One, the executive could use its nominees within the Judicial Commission and the Parliamentary Committee to blackball genuine candidates as a negotiation tactic to get some of the ruling government's favorites or cronies appointed. And two, at times when the relationship between the executive and the judiciary is not necessarily amicable, such as these days, the government could use the Judicial Commission and the Parliamentary Committee to bring the conduct of judges in question and selectively reveal discussions taking place at these forums to malign the judiciary. These apprehensions cannot be dismissed outright.
Our democracy is nascent and the interaction between the executive, the legislature and the judiciary is not presently moderated by entrenched institutional norms. Further the prevailing political culture does not counsel elected representatives and public office-holders to exercise restraint while making speeches or exercising state authority. In this backdrop, the recommendations of the Supreme Court to (i) increase the number of serving judges on the Judicial Commission from three to five in order to give the apex court (not the chief justice) a predominant voice in the appointment of judges, and (ii) mandate that proceedings of the Parliamentary Committee shall be in camera in order limit the possibility of entangling the judiciary into political controversies, make sense.
The object of the new Article 175-A was to make the process of appointment of judges transparent, deliberative, and consensual. The recommendations included in the interim order do not dilute this underlying objective. By referring the matter to parliament together with its suggestions, the Supreme Court has acknowledged the primary role of the legislature in determining what the law ought to be. The Supreme Court has explained that, "by making this unanimous reference to parliament for reconsideration, we did not consider the sovereignty of parliament and judicial independence as competing values. Both institutions are vital and indispensible for all of us and that do not vie but rather complement each other..." Through such tempered and constructive tone, the Supreme Court has proposed a collaborative model of institutional interaction that parliament can build on.
But while romanticising the prudence of the interim order let us not get carried away. The apex court has brought to life the mechanism for judicial appointments introduced by the 18th Amendment, but in probationary mode. The onus is now on parliament and the executive to ensure that this trial works. The responsibility for revisiting the language of Article 175-A lies with the Parliamentary Committee on Constitutional Reform. Under the able leadership of Raza Rabbani, there is little doubt that the PCCR will rise up to the occasion, avail this opportunity to incorporate the recommendations of the Supreme Court, and iron out any remaining wrinkles.
It would be advisable for the PCCR to develop not only a code of conduct for the Parliamentary Committee, but also a fit and proper test for its members to ensure that this committee has the right mix of expertise and experience to overlook the recommendations of the Judicial Commission. The initial composition of the Parliamentary Committee must be such that inspires confidence. The seamless confirmation of additional judges presently working in the high courts through this new mechanism will help allay many apprehensions.
Let us remember that the cost of failure will be significant. What is at stake is not the composition of the Judicial Commission or the freedom of speech of members of the Parliamentary Committee. The outcome of the consultative process kicked off by the interim order of the Supreme Court will directly influence the apex court's approach to democracy and constitutionalism that will be documented in the detailed judgment. If parliament responds to the overture of the judiciary with poise and thoughtful action, the court may find no need to endorse any basic structure theory as a permanent vehicle to review and revise constitutional amendments or view the Parliamentary Committee as a partisan interference with judicial appointments.
The interim order's lack of focus on the mischievous Article 2A and the basic structure theory suggests that the court wisely accepted the counsel of bright legal minds such as Salman Akram Raja as opposed to Hafeez Pirzada and other sharks egging the court on to bring the knives out. This unanimous order represents the reason and restraint of the apex court. But it is only an interim order. If parliament doesn't reciprocate the sense and sensibility exhibited by the court, there is no guarantee that come January a more hawkish sentiment will not reverberate in the apex court.

Email: sattarpost.harvard.edu