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Judicial appointments


July 11, 2019

The methods of appointment of judges have a direct impact upon both the integrity and the independence of judges. Weak appointments lower the status of the judiciary in the eyes of the public and create a climate in which the necessary independence of the judiciary is liable to be undermined.

The requirement of merit and good character under the English constitution and practice was underpinned by the principles of transparency and independence from politics. Merit requires at least five qualities and abilities: intellectual capacity; personal qualities; an ability to understand and deal with people fairly; authority and communication skills and efficiency. Fifteen years at the bar are sufficient to judge merit and good character. In other countries, bar office-holders are not even considered for appointment as judges – merit and not expediency.

The authority to appoint judges is a great power. Historically, the executive branch of government appointed judges; in many countries, even today the executive selects and appoints judges. In Pakistan, the power of selecting judges was taken from the executive in 1996 and given to the judiciary (chief justices) in the Al-Jehad Case, through an interpretation of the word ‘consultation’ used in Articles 176 & 193 of the constitution; for this they relied on an Indian judgement (Advocates on Record Case, 1994). These two provisions in our constitutions (s) were based on a constitutional formulation firstly incorporated in the Indian constitution.

The Supreme Court, through an interpretive process, practically took away this great power from the executive and vested it in the judiciary. The executive continued to propose names in consultation with the chief justice (s) but actually the chief justices had the ultimate say till it was changed through an amendment. This change in the constitutional scheme does not go well with the constitutional principles of representative government.

The Charter of Democracy (COD), seemingly and without fully appreciating the constitutional scheme, influenced by the Constitutional Reforms Act, 2005 of the UK and the US constitution (Article III), recommended a hybrid method of appointments to the high courts and the Supreme Court whereunder the chief justice(s) would propose names to a judicial commission. The commission would then recommend names to a parliamentary committee that would confirm those names to the executive for appointment. In hurriedly filed petitions (Nadeem Ahmed v Federation), after hearing for months, through an interim order, the Supreme Court got amended some of the provisions of Article 175 A by the 19th Amendment which completely ended the purpose of amendment.

The commission is meant to work as a check on the powers of the chief justices, who try to obtain an advanced clearance from the members of the Commission. The commission is performing its true role as envisaged by the constitution. It does not perform a judicial function. The chief justices are expected to make choices on merit. No room is left for complaint. The biggest legacy of a chief justice is his recommendations for appointments.

Appointment to a public office is a trust. The chief justice (s) and the commission are answerable to the people of Pakistan and Allah Almighty in the execution of this sacred trust. The constitution mandates that the best of the best amongst the available lot should be appointed. That can be achieved only through merit.

The practice of appointing additional judges against permanent vacancies based on convention has proved a blessing to correct errors of judgement in this new system. It was also noticed that on some occasions advocates were interviewed before their names were sent to the commission. This practice has no unconstitutional basis.

If that is necessary, then transparency and merit demand that the person recommended to the commission should appear either before the commission or a parliamentary committee. A hearing should take place under public gaze. After all, a judge is the custodian of the rights of people. They are entitled to know the merit and character of the judge. Secrecy is the negation of constitutional values.

The commission simply endorses a nomination to the SC. The parliamentary committee is now a toothless body. It has no say. The commission or committee have never rejected any person proposed for appointment to the Supreme Court. It appears that prior to bringing a matter before the commission, homework is done. An appointment to the Supreme Court is a fresh appointment. It should be made in a manner that no room is left for complaint.

The commission should consider more than one name against a vacancy for appointment to the Supreme Court. There is a difference between consideration and recommendation. The constitution is to be interpreted so as to advance constitutional norms of merit, transparency and diversity.

A couple of books published on the appointments of Supreme Court Judges of India give a detailed account of the inside stories of these appointments. There is no parallel found in the US, English and Continental judicial history.

The present method of appointments has failed to achieve the objectives for which it was introduced. India too introduced a judicial appointment commission through the 99th Amendment that was struck down by the Supreme Court in 2016.

It is high time that the practice developed around this new method of appointments of judges is improved to ensure merit and transparency.

The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan.

Email: [email protected]