2011

Whether 19th amendment will

establish the supremacy of
Parliament or Judiciary

Presented to Prof Abdul Waheed

Presented by: Muhammad Bilal Ramzan
Roll number: 14 7th semester.
1/13/2011
 Whether 19th amendment will establish the supremacy of
Parliament or Judiciary

Need for 19th amendment:

Supreme Court of Pakistan in its interim order with respect to 18th amendment recommended that
certain changes be made to Article 175-A which pertained to the procedure of appointment of
Judges of the higher judiciary. The interim order was given on 21 st October 2010. After the
introduction of 18th amendment, legal academia and practitioners raised objections as to the
maintenance of independence and impartiality of judiciary in light of the new procedure which
according to them would become questionable.

As provided in the Al-Jehad or Judges Case, independence and impartiality of judiciary is linked
with the procedure of appointment. Thus, making any change in the procedure which may
politicize the judiciary or make it controversial may be deemed as unacceptable by the judiciary
and hence, void. It was clearly laid down in the 18 th amendment’s order that the Constitution in
its very Preamble laid down that, "the independence of the judiciary shall be fully secured". The
judiciary has not been made part of the Executive or the Legislature (Article 7), its separation
from the executive was made a constitutional command [Article 175(3)].

The above mentioned scenario led to the need of 19 th amendment so that the alterations as per
Article 175-A proposed by the Supreme Court of Pakistan can be made to the constitution. The
changes recommended in the order were as follows:

1. In all cases of an anticipated or actual vacancy a meeting of the Judicial Commission

shall be convened by the Chief Justice of Pakistan in his capacity as its Chairman and the
names of candidates for appointment to the Supreme Court shall be initiated by him, of
the Federal Shariat Court by the Chief Justice of the said Court and of the High Courts by
the respective Chief Justices.
2. The Chief Justice of Pakistan as head of the Judicial Commission shall regulate its
meetings and affairs as he may deem proper.
3. The proceedings of the Parliamentary Committee shall be held in camera but a detailed
record of its proceedings and deliberations shall be maintained. The Parliamentary
Committee shall send its approval of recommendations of the Judicial Commission to the
Prime Minister for onward transmission to the President for necessary orders. If the
Parliamentary Committee disagrees or rejects any recommendations of Judicial
Commission, it shall give specific reasons and the Prime Minister shall send copy of the
said opinion of the Committee to the Chief Justice of Pakistan and the same shall be
justiciable (capable of being disposed of by court) by the Supreme Court.
 4. All cases of fresh appointments of Judges of the Supreme Court, of the Federal Shariat
Court, of the High Courts and of Additional Judges of the latter Courts shall be processed
forthwith under Article 175A.

Extent of conformity shown by Parliament in 19th amendment:

If one shall read the 19th amendment in detail, it clarifies the fact that not all the
recommendations proposed by the Supreme Court have been met, rather the position more or
less remains the same with the power still vesting majorly in Parliamentary Committee.

1. An increase has been made in the number of judges in the judicial commission whereby
the number has been increased from four to six giving a significant majority to the Judges
in the committee which formerly had 4 judges in total. This increase clearly implies that
parliament intends to vest the power of recommendation with the judiciary and the others
playing a role of advisors. Thus, judges will retain majority in the judicial commission
and can recommend names at their behest.
2. However, it still has not been clarified whether or not the Chief Justice of Pakistan will
preside over the meetings or not and what would be the status of name recommended in
his absence. Thus, the power as recommended in the order has not been expressly vested
in the Chief Justice of Pakistan.
3. The recommendation that names of the nominees to fill a vacancy shall be initiated by the
Chief Justice has also been set aside by parliament in the 19 th amendment. This means
that any member without the consent of the honorable Chief Justice can initiate a name
for nomination. This practice will harm the smooth running of the proceedings plus
politicize at the same time as well. Since, Attorney General and Federal Law minister are
direct representatives of the executive and rather the parties to which they are affiliated. It
will harm the quality of judges that will be inducted and thus making the judiciary
doubtful.
4. The Parliament has not adopted the third recommendation as a whole. Only the former
has been adopted and the latter rejected. This includes the adoption of the procedure for
sending the accepted or rejected names through the Prime Minister. Further, it also
accepts to hold record of the committee’s meetings and expensing reasons whereby a
rejection is made by 3/4th of total members. However, the rejection and its reasons have
not been rendered justiciable by the parliament. This clearly implies that the
parliamentary committee which will consist of laymen will have an upper hand in the
selection process rather than people with knowledge and wisdom of law. Also by making
it part of the law that the commission shall send a new nomination if the former had been
rejected by the committee will diminish the integrity of the commission and its members.
Conclusion:

Referring to the arguments made above with respect to the recommendations and the level of
conformity attained by the parliament in the newly incorporated 19th Amendment, it can be
established that parliament has only given explanations of what was already embedded in Article
175-A in 18th amendment by removing ambiguities. It has not addressed the core issue of
keeping judiciary separate from executive’s and legislature’s influence.

Therefore, it can be established that the parliament has not tried to strike a system of check and
balance rather it has distorted the image of judiciary which may amount to the assassination of
the integrity of those dispending justice for people may consider them political appointments
giving benefits to their employers. It negates the role of Chief Justice and does not take into
account the all-important recommendation of making the nominees rejection justiciable. Hence,
parliament still maintains an upper hand in the process of appointment of judges of higher
judiciary.