MPs move against 19th Amendment, SC observation

ISLAMABAD: The Parliamentary Committee on Judges Appointment has agreed to amend the Constitution and has drafted an amendment bill whereby parliament will get primacy over the judiciary in the appointment of judges for the superior judiciary.
A copy of the draft constitutional amendment bill, available with The News, clearly says: “If a nomination (made by the Judicial Commission) is not confirmed (by the Parliamentary Committee), the ommission shall send another nomination within 45 days.”
It add, “Decision of the Parliamentary Committee shall not be called in question in any court on any ground whatsoever.”This amendment, if finally approved by parliament, would give the Parliamentary Committee supremacy over the Judicial Commission. This recipe of the Parliamentary Committee onJudges Appointment is also in friction with the 19th Constitutional Amendment which was made by parliament following the observations of the Supreme Court in 2010.
The SC in 2010 had asked parliament to further amend the 18th Amendment for the purpose that the Parliamentary Committee shall send its approval of recommendations of the Judicial Commission to the prime minister for onward transmission to the president for necessary orders. The SC had added that if the Parliamentary Committee disagrees or rejects any recommendations of the Judicial Commission, it shall give specific reasons, and the prime minister shall send copy of the said opinion of the committee to the chief justice of Pakistan and the same shall be justiciable by the Supreme Court.
The last parliament amended the Constitution as per the observations of the Supreme Court to avoid a possible striking down of relevant articles of the Constitution and amendments in the 18th Constitutional Amendment. Now after over four years, parliament is again moving to get its say final in the judges appointment case.
The draft bill for yet another constitutional amendment, as prepared by the Parliamentary Committee on Judges Appointment, also recommended reconstitution of the Judicial Commission.
For the appointment of judges of the Supreme Court, the draft bill says that the chief justice of Pakistan would head the commission which will also comprise four most-senior judges of the Supreme Court, Federal Minister for Law and Justice, Attorney General of Pakistan and a senior advocate of the Supreme Court nominated by the Pakistan Bar Council for a term of two years.
In case of appointment of judges of a High Court, the Judicial Commission shall also include the chief justice of High Court to which the appointment is being made, the most senior judge of the HC, provincial minister for law and an advocate of HC to be nominated by the concerned bar council for a term of two years.
The draft bill introduced a new committee with the name of “Initiation Committee” in each high court to initiate nominations for appointment of the judges of HCs. The Initiation Committee, it is proposed, shall consist of chief justice of the concerned HC as it chairman while the members include two most senior judges of that HC, advocate general and an advocate nominated by the concerned bar council.
The Initiation Committee shall send nominations to the commission within 60 days of occurrence of a vacancy. In case the Judicial Commission or the Parliamentary Commission does not confirm the nominations of the Initiation Committee, the later would send another nomination within 60 days.
About the Parliamentary Committee, the bill suggests an amendment that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of members of the Senate only.
The most tricky part of the draft bill envisages, “(18) The parliamentary committee on receipt of a nomination from the commission shall examine credentials, capability, moral and financial integrity of the nominee and may confirm the nominess by majority of its total members within thirty working days, failing which the nomination shall be deemed to have been confirmed: Provided that the Parliamentary Committee may not confirm the nomination by three-fourth of its total membership within the aforesaid period; Provided further that it a nomination is not confirmed by the Parliamentary Committee it shall forward its decision to the Commission through the Prime Minister: Provided further that if a nomination is not confirmed, the Commission shall send another nomination within forty-five days.
“(19) Decision of the Parliamentary Committee shall not be called in question in any court or any ground whatsoever.”Presently, the Constitution gives an upper hand to the Judicial Commission whose nomination if not confirmed by the Parliamentary Committee, the Supreme Court gets the power to take up the case and decide.
To ensure that the SC 2010 directions given to parliament do not have any further implications, the draft constitutional amendment bill suggests: “(25) The provision of this Article (175) shall have effect notwithstanding any order or judgment of any court.”