Balochistan High Court, ECP to become dysfunctional, say experts
August 19, 2010
ISLAMABAD: Lack of implementation of certain parts of the 18th Amendment by the government, parliamentary bodies and other forums has given rise to serious glitches, including the looming threat of the Balochistan High Court (BHC) becoming empty and thus dysfunctional, and continuing incompletion of the Election Commission of Pakistan (ECP), legal experts say.
“In the absence of their confirmation, all the four additional BHC judges will become non-existent on September 5 after completing their one-year tenure as neither the mechanism of appointment of superior court judges introduced by the 18th Amendment nor some of its other provisions have been put in operation,” prominent constitutional expert Justice (R) Tariq Mehmood told The News.
He suggested that the 17-member Supreme Court bench, which was hearing the challenge to certain portions of the 18th Amendment since long, hand down its ruling during the current week because comprehensive arguments covering every aspect have been advanced by all sides. “I think maximum time has been given to lawyers to speak on their stands. The apex court’s interpretation would clarify different aspects.”
Another expert said that the ECP was in limbo for the past four months as the government was dragging its feet on nominating its four retired high court judges as its members and the National Assembly speaker was not constituting a parliamentary committee to approve these appointment as required by the 18th amendment. The ECP has sent a reminder to the federal Law Ministry stressing the need for early nomination of its members. The ECP became extinct after the promulgation of the 18th Amendment and the new composition was necessitated.
Tariq Mehmood said that the previous procedure of notifying confirmation of additional judges (who were earlier always appointed for one year) on completing their one year by the president on the recommendation of the chief justices of the Supreme Court and the high court concerned was scrapped by the 18th Amendment. So, this can’t now be applied to confirm the four BHC judges. With the expiry of their tenure on September 5, the BHC will be left with only the chief justice, who was confirmed at the time of his appointment.
He said that non-constitution of the judicial commission as well as parliamentary committee has created this situation. He said that both the judicial commission and parliamentary committee have been given the powers under the 18th amendment to make rules governing their procedure and proceedings. By doing so the BHC judges could have been confirmed, but this has not been done perhaps because this provision has been challenged in the apex court.
Tariq Mehmood said that the government also had another way of confirming these BHC judges through the old procedure by drawing power from Article 267A (power to remove difficulties) inserted by the 18th Amendment. It says if any difficulty arises in giving effect to the provisions of the 18th Amendment or for bringing them into effective operation, the matter shall be laid before both the Houses of Parliament in a joint sitting, which may by a resolution direct that its provisions shall, during such period as may be specified in the resolution, have effect, subject to such adaptations, whether by way of modification, addition, omission, as may be deemed necessary or expedient. Provided this power shall be available for a period of one year from the commencement of the 18th Amendment. The expert said that since their enactment all the provisions of the 18th Amendment had been effective even though some of them had been challenged in the Supreme Court because no stay order has been issued.
He said a difficulty that would arise in regard to the appointment of judges to the BHC through the judicial commission would be that this high court has no senior most judge (after the chief justice because all the four justices were nominated the same day), who would become member of the judicial commission along with his chief justice to recommend to the parliamentary committee appointment of judges to the BHC. The commission is to initiate the process of nomination of judges to superior courts and is to send its recommendations to the parliamentary committee.
“In the absence of their confirmation, all the four additional BHC judges will become non-existent on September 5 after completing their one-year tenure as neither the mechanism of appointment of superior court judges introduced by the 18th Amendment nor some of its other provisions have been put in operation,” prominent constitutional expert Justice (R) Tariq Mehmood told The News.
He suggested that the 17-member Supreme Court bench, which was hearing the challenge to certain portions of the 18th Amendment since long, hand down its ruling during the current week because comprehensive arguments covering every aspect have been advanced by all sides. “I think maximum time has been given to lawyers to speak on their stands. The apex court’s interpretation would clarify different aspects.”
Another expert said that the ECP was in limbo for the past four months as the government was dragging its feet on nominating its four retired high court judges as its members and the National Assembly speaker was not constituting a parliamentary committee to approve these appointment as required by the 18th amendment. The ECP has sent a reminder to the federal Law Ministry stressing the need for early nomination of its members. The ECP became extinct after the promulgation of the 18th Amendment and the new composition was necessitated.
Tariq Mehmood said that the previous procedure of notifying confirmation of additional judges (who were earlier always appointed for one year) on completing their one year by the president on the recommendation of the chief justices of the Supreme Court and the high court concerned was scrapped by the 18th Amendment. So, this can’t now be applied to confirm the four BHC judges. With the expiry of their tenure on September 5, the BHC will be left with only the chief justice, who was confirmed at the time of his appointment.
He said that non-constitution of the judicial commission as well as parliamentary committee has created this situation. He said that both the judicial commission and parliamentary committee have been given the powers under the 18th amendment to make rules governing their procedure and proceedings. By doing so the BHC judges could have been confirmed, but this has not been done perhaps because this provision has been challenged in the apex court.
Tariq Mehmood said that the government also had another way of confirming these BHC judges through the old procedure by drawing power from Article 267A (power to remove difficulties) inserted by the 18th Amendment. It says if any difficulty arises in giving effect to the provisions of the 18th Amendment or for bringing them into effective operation, the matter shall be laid before both the Houses of Parliament in a joint sitting, which may by a resolution direct that its provisions shall, during such period as may be specified in the resolution, have effect, subject to such adaptations, whether by way of modification, addition, omission, as may be deemed necessary or expedient. Provided this power shall be available for a period of one year from the commencement of the 18th Amendment. The expert said that since their enactment all the provisions of the 18th Amendment had been effective even though some of them had been challenged in the Supreme Court because no stay order has been issued.
He said a difficulty that would arise in regard to the appointment of judges to the BHC through the judicial commission would be that this high court has no senior most judge (after the chief justice because all the four justices were nominated the same day), who would become member of the judicial commission along with his chief justice to recommend to the parliamentary committee appointment of judges to the BHC. The commission is to initiate the process of nomination of judges to superior courts and is to send its recommendations to the parliamentary committee.
