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Pakistan high court orders review of judicial appointments

By Jay Carmella

[JURIST] The Supreme Court of Pakistan [official website] on Thursday ordered [text, PDF] parliament to review a constitutional amendment that gives the legislature the right to appoint judges. The court expressed concern [BBC report] over the ability of the judiciary to remain independent and out of politics if the legislature is allowed such power. This case came to the Supreme Court as part of several challenges made against the constitutional reforms [text, PDF] parliament passed in April. The court did not extend its ruling to declare the amendment invalid. It wrote:

Judiciaries in all democratic setups are vulnerable to the power of legislatures to create, alter or impair judicial structures including the mode of appointing, removing and remunerating the Judges. In our country...this power is tampered with constitutional guarantees that restrict legislative control over the judiciary. The Parliament was conscious of this scheme, because...it did not amend any other provision on which is built the edifice of judicial independence or the provisions relating to the functions of judiciary. Only the appointment process has been changed and the avowed objective seems to be to strike a balance between judicial independence and democratic accountability/parliamentary oversight.

The amendments passed in April received overwhelming support [NYT report] from parliament. This is in large part because of the limitations [JURIST report] that the reforms put on the power of the president, which had been expanded by former military leaders.

The Pakistani legal system, and specifically the judiciary, has seen a significant amount of controversy in the recent past. Earlier this month, a dispute among the judiciary worsened [JURIST report] as more than 1,300 civil judges resigned in protest over the treatment of judges by lawyers and to express solidarity with Lahore District and Sessions Judge Zawar A Sheikh. Controversy has also existed between the judicial and the executive branches. In February, the Lahore High Court Chief Justice Khawaja Muhammad Sharif's appointment to the Supreme Court was deferred [JURIST report] because President Asif Ali Zardari [official website] had not consulted Chief Justice Iftikhar Muhammad Chaudhry over the appointment as required by Article 177 of the Pakistani Constitution [text]. Tensions between the judicial and executive branches were also evident in January when the court released a detailed judgment in the controversial National Reconciliation Ordinance (NRO) [text] case, striking down an ordinance granting immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999. A special 17-member panel of the court rendered the original unanimous decision [JURIST report] in December, paving the way for corruption charges to be brought against Zardari.

Full post as published by JURIST - The Paper Chase on October 21, 2010 (boomark / email).