Daily Times

Over the past seventy-six years since Pakistan’s independence, the nation has had ample time to reflect on the effectiveness of the plans put in place, especially concerning the independence of the judiciary.

In any democratic state, the Legislature, the Executive, and the Judiciary function like three legs of a stool, operating independently to maintain a delicate balance. While each pillar is vital for the country’s smooth functioning, the judiciary takes centre stage as the backbone of the system. It plays a pivotal role in safeguarding individuals’ rights, holding state institutions accountable, and ensuring that they do not overstep their bounds with extrajudicial or unconstitutional actions. The judiciary’s independence is crucial to ensure a fair and just society, where the rule of law prevails, and the rights of citizens are protected.

Around the globe, entry into any of these three institutions demands going through tough hoops and meeting high standards of qualifications and competence. For legislators, it means hitting the campaign trail, going head-to-head with rivals for the same seat, and winning the trust of the electorate. Aspiring executives must ace competitive exams, prove their skills and qualifications for the job and their subsequent promotion, and demonstrate their ability to lead and make crucial decisions. For those eyeing the judiciary, it involves intense examinations, rigorous legal education, and substantial experience in the legal profession. These processes ensure that only the most capable and deserving individuals take up these significant roles in the country’s governance.

By moving away from political affiliations and adopting a rigorous and transparent process similar to the UK’s model, Pakistan can strengthen its judicial system and build public trust in the administration of justice.

As a democratic nation, it is of utmost importance to conduct an impartial assessment of what the framers of Pakistan’s Constitution achieved in terms of the judiciary’s independence and functionality. Throughout these seven decades, Pakistan has seen many ups and downs and the promulgation of three constitutions, each attempting to shape and define the nation’s legal landscape. However, during this time, the process for appointing judges in superior courts has remained relatively consistent, albeit with minor variations. To gain a comprehensive perspective, it is crucial to delve into the eligibility criteria set forth by the Constitution of Pakistan for appointing judges to the superior courts and analyse its impact on the judiciary’s integrity and overall functioning.

In Pakistan, the route to becoming a judge in superior courts takes a different turn. Unlike the stringent selection processes in other democratic nations, Pakistan’s approach has been characterised by political influences and connections. The prevailing perception is that having influential political ties or a solid connection with the Chief Justice of Pakistan seems to be the primary ticket to securing a position in the superior judiciary. This practice raises concerns about impartiality, accountability, and the ability of appointed judges to perform their duties free from undue influence.

To gain a comprehensive perspective on the present scenario, it’s crucial to examine the historical context of appointing judges in superior courts. The British Government laid down the initial regulations through the Indian Government Act, of 1935 (Act) in the sub-continent. Under this Act, the Governor-General held discretionary authority, allowing him to appoint or dismiss eligible judges in the superior court at his discretion. After gaining independence, Pakistan continued to follow the Indian Government Act of 1935 until the first Constitution of Pakistan was promulgated in 1956.

Since the adoption of the first constitution on 23rd March 1956, until the present day, Pakistan has promulgated three constitutions, and all these constitutions have provided almost the same procedure for the appointment of judges in superior courts, with only minor changes over the years. However, it is essential to note that the process evolved to some extent with the implementation of the 19th Amendment, which aimed to prioritise transparency and judicial autonomy in the appointment of judges. Under this amendment, a revamped process was put in place, featuring a Judicial Commission, headed by the Chief Justice of Pakistan, with four senior judges from the Supreme Court, a former chief justice or judge of the Supreme Court, the Attorney General of Pakistan, the federal law minister, and a senior lawyer from the Pakistan Bar Council as members. The Commission is responsible for recommending potential candidates (nominated by the Chief Justice) for judgeships in the Supreme Court. Similarly, for the appointment of judges in respective High courts, the commission had different members.

Despite this reform, the process continues to face criticism for its lack of genuine merit-based selection. Critics argue that political interference still holds sway and that the unbridled powers of the Chief Justice of Pakistan in nominating judges affect the impartiality and effectiveness of the judiciary. Aspiring judges are often seen navigating the political landscape instead of focusing solely on their legal expertise and qualifications. This situation raises concerns about whether the best and brightest legal minds are being appointed to the bench and whether the judiciary is truly independent and free from political influence.

Over the past 76 years, both the lawmakers and the superior judiciary, as separate organs, have not undertaken significant endeavours to modernise the procedure and align it with global benchmarks for appointing judges in the judiciary. To ensure fairness and transparency Pakistan should devise a mechanism for the participation of interested candidates including the members of the district judiciary in the process of selecting judges for superior courts. The central aim of this undertaking must be to preserve the judiciary’s integrity and guarantee the selection of exceptionally capable individuals to oversee justice within the nation, rather than making accommodations for relatives, acquaintances, or political associates. To accomplish this objective, the implementation of a transparent and merit-driven process is of utmost importance.

Drawing inspiration from successful models like the United Kingdom’s judicial appointments system, Pakistan can take steps towards improving its judiciary’s integrity and effectiveness. In the UK, judges are selected through a thorough process led by the Judicial Appointments Commission (JAC). This independent body is responsible for recruiting judges based on merit, competence, and experience, without any political influences. Candidates go through applications, interviews, and references (important/reported cases conducted by the candidate), and are shortlisted before being recommended by the JAC to the Lord Chancellor for appointment. The process places a strong emphasis on fostering diversity and inclusivity within the judiciary to ensure a balanced and representative legal system.

Pakistan’s judiciary plays a critical role in upholding the rule of law and safeguarding the rights of its citizens. However, the process for appointing judges in superior courts requires significant reform to ensure transparency, impartiality, and merit-based selection. By moving away from political affiliations and adopting a rigorous and transparent process similar to the UK’s model, Pakistan can strengthen its judicial system and build public trust in the administration of justice. Only through these efforts can Pakistan move towards a more effective, impartial, and robust judicial system that upholds the ideals of justice and equality for all its citizens.

The writer can be reached at amir_akram@icloud.com