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December 4, 2019

The power to appoint


December 4, 2019

The Parliamentary Committee constituted under Article 175 A (8) of the Constitution has amended its rules and decided to interview persons recommended by the Judicial Commission for appointments in the high courts.

No reason has been given as to why the nominees for the Supreme Court should not also be publically examined by the committee on their views on democracy, fundamental rights, federalism, and rule of law, provincial autonomy and many other sensitive issues. Parliament represents the will of the people. People have the right to know about the ideology of a person who is going to be the protector of their rights as a judge. Gradually, this should be extended to other constitutional appointments.

There are many seasoned and experienced parliamentarians who should be nominated by the government and the opposition to be part of this august committee. They can raise the standards of appointments through their valuable input and incisive questioning of the nominees of the commission. It will raise the prestige of parliament and quality of the bench. Openness in public affairs is the foundational value in a democracy.

The commission comprises judges and representatives of the executive and bar councils. It performs an executive function and some of its members are not under any oath. Merely because some of its members are judges does not give it any special preference over the committee created under the same provision of the constitution and whose eight members have taken the oath to preserve, protect and defend the constitution, which includes Article 25 that guarantees equality before law and equal protection and excludes discrimination and assures that a deserving person should not be deprived merely because s/he could not find favour with the higher judiciary.

It is a mystery how a chief justice selects a name. A practice has been developed that the chief justices concerned share the names with the members of the commission in advance to avoid an embarrassment and in this process names are included and excluded on their recommendations.

Judicial members of the commission are expected to independently judge the merit of persons recommended by the chief justices. Under Article 175 A (8), the commission by majority nominates one person to the committee. That means that the chief justice is obligated to recommend more than one name against each vacancy to the commission.

A practice has also been developed against the clear letter of the constitution that only one name is recommended against each vacancy to the commission. In order to ensure merit, at least the opinion of the senior judges of the high court and in case of the Supreme Court of five senior judges should be obtained on the names intended to be sent to the commission.

Moreover, it is quite possible that the chief justice and senior-most judge of the high court concerned with the members of the bar and executive may constitute a majority and get their nomination approved, despite an objection by other members of the commission. Thus it is important that the committee exercises its constitutional power and plays an active role to act as a check upon the commission, which actually initiates and recommends names for appointments. The constitution does not provide that names should be initiated by the chief justices. This power has been arrogated through an interpretation of the constitution. Even today, in India the executive initiates names.

The Supreme Court, in the Muneer Bhatti and Nadeem Ahmed cases, through a judicial interpretation botched the committee of its constitutional powers. The 19th Amendment was adopted by parliament after an interim order from the Chaudhry Court, made on the pretext of the independence of the judiciary, which simply meant judges would appoint judges without having to justify their selections.

It is time to entrust and empower parliament for the protection of our liberties. The judicial members of the commission may claim to have firsthand knowledge about the legal skills of the recommendee but that should not be the sole basis to make the commission an exclusive authority in the matter of appointments. The Judicial Commission mainly relies upon the material brought before them, including intelligence reports.

The fear that members of the committee are politicians, and they might bring in political influence to the judicial appointments, and hence the committee should not be given more powers in the matter of appointment of judges is totally unfounded. Judges and parliamentarians come from the same society. The past shows that the commission is not infallible.

There is a huge difference between the constitution and an ordinary law. A constitutional provision or a set of constitutional provisions protects certain values or provides for a mechanism to protect values and norms necessary in a society. These values are like waves in a sea, which rise and subside with the passage of time. Over the years, due to many reasons important social and moral values of truth and trust went in deficit in society. It thus became necessary to give new meaning and content to ‘honesty’ and ‘trustworthiness’ provided in Article 62(1(f) of the constitution.

The Supreme Court, in Raja Afzal’s case (1985) had held that these words had more of a religious content, with no relevance in mundane life. Several years later, in the Mehmood Akther Naqvi Case (2012), after noticing that some persons in order to get to parliament were faking their qualifications, the Supreme Court gave new meaning and content to the same provision, and purged parliament of members lacking honesty and truthfulness.

Likewise, in the Al-Jehad Case (1996), the court gave new meaning to the word ‘consultation’ and arrogated to itself the power of appointment of judges, effectively excluding the executive that was abusing this power to appoint its favourites in violation of merit. The executive had exclusively appointed the most respected judges in 1950-70. The period between 1996 and 2009 swung the pendulum to the other extreme.

The new system of appointments under the 18th Amendment was mainly inspired by the American system and was intended to bring back a balance in the lopsided system where judges appointed judges. But with the judicial interpretation that lacked convincing reasoning, the said objective got frustrated.

Today, there is a general view held by the bar that judicial appointments need stricter merit. There is great discontent about the deteriorating standards of the bar and the bench. It is high time a balance is brought in the process of appointment. This new step taken by the committee may help restore people’s confidence in the system. Let us hope it does not get politicized as previously feared. This is an opportunity for parliament to gain glory and earn the respect of the people in whose name all state power is exercised.

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

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