EDITORIAL: Extension of judges - Sunday, March 06, 2011

Source : http://dailytimes.com.pk/default.asp?page=2011\03\06\story_6-3-2011_pg3_1

In acceding to the plea of the petitioners against the rejection of four judges of the Lahore High Court and two judges of the Sindh High Court for a one-year extension by the Parliamentary Committee (PC), the Supreme Court (SC) has opened up a new controversy. It seems that the issue that had apparently been settled by parliament through no less than a constitutional amendment is still alive and kicking. The whole idea of devising this mechanism was that no one person or institution should have exclusive purview in the appointment of judges. The names of judges recommended for appointment by the Judicial Commission (JC) were to be reviewed by a bipartisan PC, removing the past role of the president in such appointments. After the SC expressed reservations on certain aspects of the appointments procedure under the 18th Amendment, the Parliamentary Committee for Constitutional Reforms (PCCR) sat down and reviewed Article 175-A, removed anomalies and accommodated the SC’s objections. The number of serving judges in the JC was increased and the PC was bound to giving its reasons for rejecting the JC’s recommendations in writing. That arrangement is now being questioned again.

One of the petitioners in the present case argued that the PC was not authorised to review the qualifications or ability of any judge. The 19th Amendment had made an exception to Article 68 of the constitution — which bars parliament from discussing the conduct of judges — for the purpose of judges’ appointment. It had, however, agreed to the SC’s suggestion that the proceedings of the PC would be held in camera. The argument of the petitioners’ counsel completely negates parliament’s role and function, which had struck a fine balance between the powers of the judiciary and parliament through the 19th Amendment. It is therefore a setback to that consensus that the court accepted the petitioners’ position and directed the government to appoint the judges denied extension by the PC. While it is the prerogative of the SC to interpret the constitution, such interpretation can become a cause of concern when it indirectly questions the law-making function of parliament and tries to undermine its powers.

The PC had based its decision of rejection on the review of their performance by the chief justices of their respective high courts. Commenting on this development, the Supreme Court Bar Association (SCBA) President Asma Jahangir said, “Individuals who desperately seek judicial appointments, despite being evaluated as substandard, will only degrade the integrity of the judicial institution. It is not anyone’s right to be a judge and if the PC is simply expected to bow to every decision of the JC, then it has no role at all and the constitution may as well simply give a few judges of the SC all powers to appoint anyone they please, whether competent or not.”

This decision would inevitably raise tensions between the judiciary and parliament and by implication the executive. The constitutional provisions are so clear that these petitions should not have been admitted in the first place. One cannot but agree with Asma Jahangir when she says that the decision of the SC “has struck down the spirit of the 19th Amendment which accommodated the concerns of the Supreme Court, but did not agree to bring the decisions of the PC under judicial scrutiny.” *

SECOND EDITORIAL: The games Maulana plays

Maulana Fazlur Rehman, chief of the Jamiat Ulema-e-Islam-Fazl (JUI-Fazl), has apparently shifted his stance on the misuse of the blasphemy laws. He said, “If a law is being misused against minorities we are ready to discuss this (matter).” It took the deaths of two political leaders, Punjab Governor Salmaan Taseer and federal Minister for Minorities Shahbaz Bhatti, to make the maulana realise that the blasphemy laws are indeed being misused and have also led to such mindless mayhem. Maulana Fazl also condemned the murder of Mr Bhatti and said, “Such acts (of violence now) amount to taking the law and constitution in one’s own hands.”

It seems that Maulana sahib is now reconsidering his previous hardline position on the blasphemy laws and extrajudicial killings in this regard. The religious right and the religio-political parties supported the blasphemy laws to such an extent that it had become difficult to even debate on this issue. The extreme lunatic fringe resorted to killing those who were only talking about amendments in the law to stop it from being misused. The climate is so heated that Ms Sherry Rehman is now under grave threat. The cases of blasphemy have increased over the years, especially since the death penalty was made mandatory under General Ziaul Haq’s ruthless regime. The law has now become a travesty of justice. It is time that a rational solution be sought to this issue. Political will and consensus is needed to amend the blasphemy laws in order to protect it from being misused.

On another note, Maulana Fazl hosted a dinner for the opposition parties at his abode in Islamabad. PML-N’s Chaudhry Nisar Ali Khan, PML-Q’s Chaudhry Shujaat Hussain, MQM’s Farooq Sattar, Jamaat-e-Islami’s Professor Khursheed Ahmed and some others were present in the meeting. It is of course the democratic right of the opposition parties to form an alliance and if this alliance is made in parliament to hold the government accountable, there is nothing wrong with it. But if this alliance is being formed to pursue any extra-parliamentary agenda, like the Islami Jamhoori Ittehad (IJI) of yore, then there is cause for worry. The opposition parties should stick within the democratic parameters and not try to destabilise the government. Pakistan needs democracy to counter extremism and to achieve long-term stability. *

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