Daily Times

In an unequivocal public confession, the Chief Justice of Pakistan, Mian Saqib Nisar said that “incompetence of judges, including himself, is one of the major reasons behind prolonged litigation and inordinate delay in decisions.” While talking to the silver jubilee seminar organised by the Supreme Court Bar Association (SCBA) in Lahore, the Chief Justice lamented that, “the knowledge of judges even about basic laws was not adequate and they were getting salaries more than what officials of other government institutions received costing a single judge Rs 55,000 per day.”

The dismal trajectory of judicial failure as outlined by the CJ begins with the incompetence of judges as a key variable which leads to disproportionate delays resulting in failure/denial/miscarriage of justice. However, the roots of this problem-tree were perhaps missed out which relate to the primary process and politics of judicial appointments at the lower and higher judiciary levels.

Historically, the key recruiting cadres for judges since India High Courts Acts 1861, has been the barristers, civil servants, district judges, pleaders and members of subordinate judiciary. The judges were appointed by the Crown and held office during his pleasure (durante placito) which was later fixed at 65 years through the Government of India Act 1935. The chief justice of respective High Courts would make recommendations for judicial appointments to the Governor General. This resulted in the creation of an ‘elite club’ where the siblings, relatives and friends of judges constituted most of the colonial superior judiciary. Abhinav Chandrachud, a practicing lawyer of Bombay High Court explained this in his book “An Independent Colonial Judiciary: A History of the Bombay High Court” that Indian judges, who came from affluent families, were considered to be more elite in India than their British counterparts were in Britain.

Since independence in 1947, the appointment of judges remained a contentious issue between executives and judiciary as the institution wields a great deal of power in the functioning of modern nation state and determining the contours of power politics. Through a self-selecting process a cartelisation of powerful law chambers reinforced the familial and network capture of key judicial positions. The power to select and appoint judges has been shared and bargained between executive and judiciary for long time and both have recruited the persons of their choices. Executives intended to ‘accommodate’ their loyalists while judiciary equated their veto power in the appointment of judges posing it as a prerequisite to the ‘independence of judiciary’ (Al-Jihad Trust Case).

However, in three distinct instances Pakistan’s judiciary used its judicial review powers to secure decisive authority regarding the appointment of judges both at the Supreme Court, High Courts and Subordinate judiciary.

Since independence in 1947, the appointment of judges remained a contentious issue between executives and judiciary as the institution wields a great deal of power in the functioning of modern nation state and determining the contours of power politics

First, through Al-Jihad Trust Case (PLD 1996 SC 34) the Supreme Court elaborated the meaning of the word ‘consultation’ as contained in Article 177 and 193, dealing with appointment of high court judges. The court held that “the consultation should be effective, meaningful, purposive, consensus-oriented leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.”

Second, through a judgment (PLD 2012, SC 649) on the separation of judiciary from the executive, the appointing authority of members of subordinate judiciary has been transferred from provincial Public Service Commissions to the High Courts. The judgment cited that “the High Courts must retain a significant degree of ‘control’ over the appointment and selection process of judicial officers.” Initial recruitment as Civil Judge-cum-Judicial Magistrate is made through written tests and viva voce examination, conducted by the respective High Court. A Committee of the judges of the High Court decides the issue of promotion of judges. For appointment as Additional District & Sessions Judge, quota is fixed for service personnel as well as induction from the Bar. Appointment as District & Sessions Judge is by promotion on the basis of seniority-cum-fitness from among the serving judicial officers. The Court’s decision to self-assign the recruitment of judicial officers in the subordinate judiciary sparked a controversy and there has been demands by different quarters that judicial officers should be recruited by the Public Service Commission instead of High Courts.

Third, through a judicial review of the 18th Amendment and advice by the superior court leading to the 19th Amendment via Article 175(A), the Parliamentary Committee and the Judicial Commission were formed for the appointment of judges. However, in  2011, Munir Hussain Bhatti case, the Supreme Court held that the Parliamentary Committee did not have the jurisdiction to review decisions of the Judicial Commission recommending the appointment of judges; and Committee’s decision was subject to judicial review by a bench of the Supreme Court. In a counter argument, the Supreme Court Bar Association (SCBA) contended that the opinion in the judgment was contrary to the intention of the Constitution, since “it had reduced the role of the Parliamentary Committee to a mere rubber stamp”.

Moreover, the rules regulating the Judicial Commission gave Chairman of the Commission/CJP special powers “to relax strict application of these rules in the public interest.” These developments undermined the role of the Parliamentary Committee and resulted in a quasi-veto power to the Chief Justice of Pakistan in appointment of judges. According to the current rules, for each anticipated or actual vacancy of a Judge in the Supreme Court or the Chief Justice of Federal Shariat Court or the Chief Justice of a High Court, the Chief Justice of Pakistan initiates nominations in the Commission for appointment against such vacancy. Whereas, for each anticipated or actual vacancy of a Judge in the Federal Shariat Court or Judge in the High Court, the Chief Justice of the respective Court initiates and sends nomination for appointment against such vacancy to the Chairman for convening meeting of the Commission.

The fact is the higher judiciary in Pakistan has become a sanctum sanctorum into which only the well-entrenched ‘insiders’ or those in the networks of the ‘insiders’ can get entry to elite club of judiciary. By way of illustration, there is almost the near absence of promotions from trial and district courts to the higher judiciary, indicating that appointments are not made on the basis of so-called merit.

Pakistan Bar Council (PBC) and Parliamentary Committee for appointment of judges raised concerns on the way decisions are made by the head of judicial commission to appoint judges. Chief Justice of Supreme Court in a later move accepted PBC demand to amend the rules of the Judicial Commission and constituted a committee to propose amendments. The discussions and consultations are going on to make the process of appointment of judges merit-based, inclusive and transparent by introducing another amendment in the relevant articles of the Constitution. The SCBA has written a letter to the Parliamentary Commission with new package of constitutional amendment to this effect, however, the fear of judicial review of any such amendment which could be perceived as an attempt to reduce the role of judiciary in the appointment of judges is what prohibits parliamentarians to take up this issue as legislative agenda.

Post-script: The increasing incompetence of judges can be addressed through a change in the process of judicial appointments making it competitive, merit-based, transparent and inclusive. Will judiciary like to surrender its role influencing such appointments doing away with the ‘sanctum sanctorum’ in judiciary?

The writer is an independent researcher with interest in politics of culture, media and governance. E-mail: amjad.544@gmail.com

Published in Daily Times, October 16^th 2018.