Daily Times

Beyond the structures or the texts governing the appointments of judicial officers in superior courts; this piece attempts to dissect the process involved in placing individuals to such positions. And by extension, whether the process so employed, in any manner or form, influences the appointments made.

Just for context, in Pakistan, a Judicial Commission constituted under Article 175A of the Constitution nominates judges to the superior courts. The Judicial Commission is headed by the Chief Justice. The composition of the Commission, in general, varies depending upon the appointments in the Supreme Court, High Courts, Islamabad High Court and Federal Shariat Court.

The Judicial Commission sends its nominations to the Parliamentary Committee comprising of eight members of the parliament, drawn from both the houses, and from each sides of the aisle. The Parliamentary Committee on receipt of a nomination from the Judicial Commission may confirm the nominee by majority (not three-fourth) of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed. The Parliamentary Committee may not confirm the nomination by three-fourth majority of its total membership with reasons to be recorded and within the stipulated fourteen-days-time period.

In so far as the process is concerned, the meetings of the Parliamentary Committee are held on camera and the record of its proceedings is maintained, loosely in the form of minutes. There is no such Constitutional requirement for the maintenance of record to the extent of deliberations of the Judicial Commission. For instance, we don’t know the factors considered or reasons that prevail or due weight accorded to the antecedents of an individual, private or professional, before that person is elevated to the Bench or promoted to the apex court; except for considerations to the rotation policy for provinces.

In addition, the requirement of secrecy for the proceedings of the Parliamentary Committee is archaic. It is at odds and averse to the standards expected of a responsible government that seeks to serve people transparently and openly; a bedrock of modern democracy! All the coordinate branches must afford greater access to information, procedures and practices — especially when it involves key decision-making processes such as the appointments of judicial officers to the superior courts.  In short, while the superior courts, have time and again, emphasised on the objective criteria for the promotion of the civil servants; we don’t know, erring at the side of caution here, whether such criterion exists for elevation to the bench and to move further up the judicial ladder.

The provision for an open process for the appointments bears every mark of prudence to further strengthen the judicial branch. If the judges are appointed through an open process; such judges will be received as more independent and competent

The text of the Constitution places greater compulsions on the Parliamentary Committee than on the Judicial Commission. Part of it is due to the chequered Constitutional history and turf wars among the coordinate branches. The architects of the Constitution (Eighteenth Amendment) Act, 2010, had earlier envisaged and lobbied for greater control and oversight of the judicial appointment process. The Eighteenth Amendment Act, 2010, was challenged before the apex court on the touchstone of the doctrine of the salient features of the Constitution and independence of judiciary (PLD 2010 SC 1165). The Court took cognizance in its original jurisdiction and issued directions to the Parliament to alter the text.

Parliament subsequently amended the text of Article 175-A of the Constitution through enactment of the Constitution (Nineteenth Amendment) Act, 2010, bringing the text of Article 175-A in its present form. Little was argued or discussed on deliberations of Judicial Commission apart from its composition.  At any rate, the superior judiciary has consistently gained greater ground to become the most powerful coordinate branch in the country.

The fairness of the judicial appointments lies in the process and not with the control of such appointments with any coordinate branch. The Parliamentary Committee has the power to make rules under clause 17 of Article 175-A to regulate its own procedure. Besides dumping the requirement of secrecy, the rules should enable open hearings of the nominees and such hearings should be broadcast live to the wider audience. The process of the judicial appointments should be open for everyone to see. This is in consonance with the spirit of access to justice; a substantive right of all citizens and non-citizens in a country.

It is only the process that can address concerns or even perceptions of arbitrariness. And such apprehensions surface every now and then since the process is closed, vesting complete discretion, absent any structure or criterion, with the Judicial Commission.  The provision for an open (read fair) process for the appointments bears every mark of prudence to further strengthen the judicial branch.

If the judges are appointed through an open process; such judges will be received as more independent and competent. Quis custodiet ipos custodes (Who will guard the guards themselves?) asked Juvenal.  Answer: Fair process!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, October 4^th 2018.