Pakistan's supreme court avoids constitution showdown

Stepping aside from a potentially explosive confrontation with the government, chief justice refers concerns about judicial appointment system to MPs for review.

Yousuf Raza Gilani, the Pakistani prime minister, left, shakes hands with Iftikhar Mohammad Chaudhry, the Supreme Court justice.

ISLAMABAD // Pakistan's Supreme Court yesterday decided against striking down reforms to the constitution enacted by parliament in April, avoiding a potentially explosive confrontation with the government.

The chief justice, Iftikhar Mohammed Chaudhry, instead chose to refer the court's concerns about a new constitutional mechanism for appointing senior judges to parliament for review.

It had been widely feared that the court would strike down at least one new article of the constitution - a move tantamount to challenging parliament's legislative authority.

The court stopped just short of that, issuing an interim order that packaged its objections as "proposals" to parliament, which was asked to review them by January.

An interim order read by Mr Justice Chaudhry noted that article 175-A of the amended constitution gave the chief justice a single vote in the commission, rather than making his advice binding in the selection of judges. That impinged upon the constitutional independence of the judiciary, the court said.

The constitutional mechanism for appointing judges also violated "salient features" of the constitution pertaining to the supremacy of parliament, Pakistan's constitutional blend of secular and Sharia law, and fundamental rights of the citizen, it ruled.

It did not explain how.

Under the disputed constitutional article, the judicial commission appoints judges from candidates recommended by a non-partisan parliamentary committee.

The court proposed that the parliamentary committee's recommendations should be subject to challenge in the Supreme Court and, if found questionable, be referred back to the committee for review.

The court's remarks were tempered with recognition of the elected parliament's prerogative to amend the constitution, subject to the supporting votes of at least two thirds of members.

The constitutional reforms enacted in April were unanimously approved by parliament.

Lawyers and politicians greeted the Supreme Court ruling as "historic" , if only because it averted an escalation of tensions with the government.

"This is an excellent decision because it highlights the Supreme Court's concerns without challenging the authority of parliament," said Ali Ahmed Kurd, a former president of the Supreme Court Bar Association.

"It will reduce political temperatures, and bring relations back to normal."

However, he did not agree with the court's ruling that the judicial mechanism was contrary to salient features of the constitution.

Mr Kurd was in the vanguard of a lawyer's movement that campaigned for the reinstatement of Mr Justice Chaudhry after his dismissal in November 2007 by Pervez Musharraf, then Pakistan's military ruler.

The present government, elected to office in a February 2008 general election, was hesitant to reinstate Mr Chaudhry and three other judges because of their track record of intervening against executive decisions.

Yousaf Raza Gilani, the prime minister, only did so in March 2009 under intense pressure from Nawaz Sharif, the opposition leader.

The government and judges have feuded since November of last year, when the Supreme Court struck down a 2007 amnesty law that had clearly benefitted Asif Ali Zardari, the president.

Yesterday's ruling was the third occasion in a month that the government and judiciary have come close to a constitutional stalemate threatening to Pakistan's shaky democracy.

On September 27, the court backed away from the option of ordering the military to enforce its November 2009 judgment against the amnesty law.

On Friday, the Supreme Court ordered the prime minister to give a written affidavit that the March 2009 order reinstating the chief justice would not be rescinded, following media reports that proved baseless.

But it then backed off on Monday, a day after Mr Gilani made a televised speech in which he made it clear he thought the judges had acted inappropriately by giving credence to unsubstantiated media reports over the government denials.

Yesterday's court ruling largely adopted the proposals contained in a petition challenging the constitutional amendment. The challenge was filed by the government of Punjab province, led by Mr Sharif's Pakistan Muslim League party.

The party had originally supported the constitutional reforms, including the formation of the judicial commission, after its composition was amended to give serving and former judges a one-vote majority over government nominees.

However, the party had become increasingly nervous that its subsequent populist support for the judges could backfire, members of parliament said.

"Had the Supreme Court struck down the constitutional amendment, I would have been greatly perturbed," said Khawaja Saad Rafique, who represents a National Assembly constituency in Lahore, Mr Sharif's hometown.

"But because the court has referred its concerns to parliament, the ruling has to be taken in the right spirit."

The government responded to the court's ruling by calling a meeting of the constitutional reforms committee of parliament on November 1 to start the review.

However, the committee's review of the judicial appointments mechanism is not expected to lead to wholesale change, because of the parliamentary majority of the governing coalition.

"I don't see room for anything but minor amendments," said Haider Zaman, a spokesman for the Pakistan People's Party, which leads the coalition government.