In 1996, the Supreme Court of Pakistan in Al-Jehad Trust Case ruled that recommendations of the Chief Justice of Pakistan (CJP), for appointments in the superior judiciary, are binding upon the President of Pakistan. In 2010, with the purpose to decentralise the powers of the CJP, vide the eighteenth and nineteenth amendments, Article 175-A was inserted in the Constitution of Pakistan to set up a Judicial Commission and a Parliamentary Committee for appointment of judges in superior judiciary. Nevertheless, in Munir Bhatti’s Case 2011, the Supreme Court categorically held that the Parliamentary Committee has no authority to question recommendations forwarded by the Judicial Commission, thereby, making judiciary completely independent of executive control and conferring in the Judicial Commission unbridled powers for appointments of the judges in the superior judiciary.
Recently, the illustrious judge of Sindh High Court (SHC), Justice Munib Akhtar, was appointed as a judge of the Supreme Court. The appointment has divided the legal fraternity into two factions and has instigated an attention-grabbing debate; one section of lawyers vehemently protested and asserted that, since the appointment bypassed three senior judges of the SHC, therefore, it contravenes principle of seniority and doctrine of legitimate expectations enunciated by the Supreme Court in Al-Jehad Trust Case. On the other hand, another segment of lawyers is arguing that the appointment of Justice Munib doesn’t suffer from any illegality or irregularity as the same is based purely on competence of the appointee, which should be the only benchmark for appointment of a judge in the Supreme Court.
It is pertinent to mention that the argument in favour of seniority is misconceived. It is true that appointments based entirely on seniority provide objectivity; nonetheless, the same encourages indolence, inefficiency and rigidity. Seniority system is fair to all and sundry except the best ones as it fails to consider ability, hard work and performance of the candidates. Additionally, it only promotes laid-back attitude, as an official has nothing to win or lose whether he works hard or not. Even otherwise, Article 177 of the Constitution nowhere mentions that the most senior judge in the high court shall be considered for appointment in the Supreme Court, it only stipulates two conditions, first, candidate must have served as judge of the high court for a period not less than five years, and second, he/she has been an advocate of the high court for a period not less than fifteen years. Moreover, the apex court in Supreme Court Bar Association Case 2002 further clarified the issue by ruling that appointment in Supreme Court is a fresh appointment where the principles of seniority and legitimate expectations are irrelevant.
In Munir Bhatti’s Case 2011, the Supreme Court categorically held that the Parliamentary Committee has no authority to question recommendations forwarded by the Judicial Commission, thereby, making judiciary completely independent of executive control and conferring in the Judicial Commission unbridled powers for appointments of the judges
The contention that competency should be the chief ground for appointment of a Supreme Court judge is well founded and tenable. It needs to be noted that, the Supreme Court is the final authority for determining people’s rights, thus, the mistake of appointing an incompetent judge, howsoever senior, is incorrigible. A judge in the Supreme Court should be appointed on the basis of his understanding, interpretation and application of law. We need competent judges, regardless of when they were born or elevated to the bench.
It needs to be borne in mind that competence based appointments are like a double-edged sword, if discretion to appoint is structured it can lead to absolute objectivity and if the same is unstructured, then objectivity becomes a casualty. Although, the current structure of the Judicial Commission is ideal as the same ensures independence from the executive and the legislature, the way it functions is still problematic in many ways. For instance, pursuant to Rule 3(1) of Judicial Commission of Pakistan Rules 2010, the CJP is the sole authority to initiate a candidate’s name for appointment in the Supreme Court. Additionally, Judicial Commission’s working is based on exercise of unstructured discretion, whereby the assessment of potential appointees is based on subjective satisfaction of its members. Even though the members of the Judicial Commission are well equipped to ascertain competence of potential appointees, however, there is no prescribed method of assessing how one candidate is better than another and what factors are taken into account for appraisal of competence.
Independence of judiciary is not limited to freedom from influence of executive or legislature; it also demands an objective system of judicial appointments to secure and strengthen the confidence of the public in the judiciary. It is true that we do need a judicial system which favours competence over seniority for appointments in the apex judiciary, and to avoid complaints of human subjectivity, non-transparency, arbitrariness and favouritism associated with it, the discretion of Judicial Commission needs to be structured through enactment of written guidelines providing a comprehensive framework for analysing and appraising credentials of potential appointees.
The Supreme Court has itself, in catena of judgments, ruled that unstructured discretion promotes the practice of pick and choose; it is ex facie discriminatory and is against principles of good governance. It will be highly apposite and fortunate if the apex court starts applying the same rulings on its internal functioning in general and on process of judicial appointments in particular.
The writer is a lawyer based in Lahore
Published in Daily Times, June 3rd 2018.