The interminable saga of the judiciary-executive ‘clash’ rumbles on, frequently causing collateral damage and weakening institutions. The latest round concerns the fate of 32 additional judges of the high courts whose terms are set to expire in September. Because the process for the appointment of superior court judges has been changed by the 18th Amendment and because the new process is under challenge in the Supreme Court, a cynical blame game of sorts has unfolded.
The SC has intervened and ordered that the judges will continue to perform their duties until the 18th Amendment challenges are decided, an order that has raised eyebrows in some quarters because of its potential implications. Has the SC de facto suspended parts of the constitution, specifically Article 175-A, by allowing the additional judges to continue beyond their one-year term? The ad hoc solution may or may not be on firm legal footing, but the government undoubtedly must shoulder much of the blame in the present instance.
The only thing that can mitigate the government’s responsibility for the unsatisfactory and temporary resolution of the problem faced by the additional judges is that no one really expected the 18th Amendment hearings to continue for so long. Given that the 17-member bench will effectively decide what the valid constitutional process for the appointment of superior court judges will be, the government’s dithering can be attributed partially to that. But only partially. For weeks it was apparent that the hearings would continue into September, which means the government should have thought through its options. Either it should have formed the parliamentary committee that will nominate judges, thereby signalling its intention to use the 18th Amendment procedure, or it should have made alternative arrangements, for example, by invoking the transitional constitutional provisions to allow the additional judges to continue working. Waiting until days before the start of September to begin the process of forming the parliamentary committee is not good enough — after all, the government had months to do so and there’s simply no way, even if the 18th Amendment process were to be used, that 32 judges could be appointed in a matter of a few days.
At this stage, perhaps all sides need to reflect on their basic duties. Consider that the additional judges near-crisis could have shut down the Balochistan High Court, with the term of all judges barring the chief justice set to expire on Sept 6. This in an insurgency-racked province where the state is already accused of abdicating its duties and allowing its writ to disappear. Surely playing politics should have its limits – Dawn
