A welcome pause
From the Blog PkColumnist.com: A welcome pause - THE pause in the long-running and acerbic discussion on the 18th Amendment provided by the Supreme Court`s (SC) interim order last week has been received with palpable relief by society, and it may be possible to see light at the end of the tunnel. The most significant aspect of the order is that by partly holding its hand back the court has taken a step towards reducing the trust deficit among the principal organs of the state. It is now up to the executive and legislature to contribute to the confidence-building process. Significantly enough, parliament is not required to do much regarding Article 175-A of the 18th Amendment act, the only issue taken up in the short order. While holding that pending a decision on the petitions "Article 175-A has to be given judicial enforcement" the court has given the provision a broader interpretation than what its authors had perhaps envisaged. Besides laying down the procedure for regulating the working of the judicial commission, the court has ruled that: — the proceedings of the parliamentary committee shall be in camera but a detailed record of its deliberations shall be maintained; — the parliamentary committee will forward its recommendations to the prime minister for onward transmission to the president; and — in case the parliamentary committee disagrees with or rejects a nomination made by the judicial commission, the prime minister will refer the matter to the chief justice of Pakistan and it will be justiciable by the SC. The court has justified the procedure laid down by it as "a construction which is in consonance with the other constitutional provisions underpinning judicial independence". What this means is that to a considerable extent the court has given its final ruling on Article 175-A. One should like to hope that the executive and legislature will take the scheme spelled out by the court as an exercise in filling the gaps in Article 175-A through an interpretation aimed at ensuring a workable procedure for appointments to the superior judiciary. Apart from the issues settled vide the short order, only two points raised in the petitions that challenged Article 175-A and during the arguments thereupon are left to be tackled by parliament — the argument that the number of SC judges joining the chief justice in the judicial commission may be raised from two to four, and the need for ensuring the existence of a parliamentary committee while the national and provincial assemblies stand dissolved. (A way to answer the latter question is available in the SC`s interim order itself.) It should not be difficult for the government to discharge its responsibility. It may not be out of place to remind the government that in a state where the transition to democracy is incomplete and uncertain simple and direct methods to arrive at crucial decisions should be preferred to multi-layered and cumbersome processes in which possibilities of abuse, or apprehensions of abuse, of procedures are greatly magnified. By ignoring this advice the committee that drafted the 18th Amendment only increased its problems.The SC`s interim order deals with Article 175-A only and while this issue may have been raised by most of the petitioners in the case the other provisions of the amendment challenged are: Articles 1, 17, 17(4), 27, 38, 45, 46, 48, 51, 58-2(b), 62, 63, 63-A, 91, 106, 148, 175, 177, 193, 203-C, 209, 219, 236, 245, 260 and 267-A. The petitions challenging these articles are yet to be decided. Since detailed arguments on the issues raised in these petitions have already been heard it should be possible to dispose them as soon as the case is taken up by the court in the third week of January 2011, subject of course to a meeting of minds on Article 175-A. Among other things, it is not desirable to prolong hearing of constitutional petitions that have the effect of paralysing the state and causing avoidable anxiety and distress to the people. At some stage the essential organs of the state will have to address the consequences of throwing the door to judicial review of parliament`s power to amend the constitution so wide open that courts are overwhelmed with challenges to each and every amendment of the basic law and the legislature is totally prevented from performing one of its key functions. After all, the first proper forum to challenge a constitutional amendment is parliament itself. Unfortunately, the controversy over the supposed inviolability of what were described as basic or essential features of the constitution seems unlikely to be amicably resolved in the present climate of absence of trust among state institutions. Now two more expressions, core values of the constitution and fundamental principles of the constitution, have been added to the debate. The whole discussion has stemmed from fears that any parliament can be mad enough to try to undo the fundamental premises of the state. So long as this perception of parliament is entertained by any institution or any section of society, it will be impossible to resolve questions regarding any basic features or the authority competent to define them in a manner that satisfies all the parties concerned, and the best course will be to shelve them for the present. While hailing the SC order many commentators have stressed the need for all state institutions to work within their limits. Such advice often ignores the role the people, civil society in particular, must play in preventing any institution from transgressing its democratic mandate or assuming a supra-state status. Pakistan`s state institutions will not learn the basics of democratic culture by their own efforts without the right kind of public pressure and until such cultural attributes strike roots in the people`s psyche. It should also be clear by now that neither good governance nor justice can be guaranteed solely by the quality of the relevant texts. For both objectives it is necessary to evolve conventions and this cannot be done so long as the democratic structure is at the sufferance of any extra-democratic element/party/institution. The "societal and collective considerations" that the SC wishes to see as the "moving and driving force" to enable the nation to face testing times and multi-dimensional challenges can gain primacy only if the democratic system is allowed to continue and, instead of being maligned all the time, the political parties are allowed their right to learn from their mistakes. n The pause offered by the apex court provides an opportunity to civil society to reflect on its failures to play its role in defending the people`s prerogatives. A great deal of soul-searching specially needs to be done by the media because it must decide whether it is going to play the kingmaker or wield the hatchet for one interest or another or whether it is going to return to the fold of the civil society and function as a watchdog over the people`s interests. . Read Full Post
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