Appointment of judges

A four-judge Supreme Court (SC) bench, on March 4, after hearing two identical petitions, has set aside the decision by the parliamentary committee that declined the recommendation by the judicial commission to extend the service of six additional judges of high courts for another year. A day earlier, Mr Justice Jawad S Khawaja, a member on the bench, had indicated the bench’s disagreement with the parliamentary committee’s decision in the following words: “What we understood from your [deputy attorney general’s] arguments is that the eight-member parliamentary commission can trump recommendations of the 13-member judicial commission comprising five senior members of the country’s entire superior judiciary”.

The question then arises that if the eight-member parliamentary commission cannot trump the 13-member judicial commission’s decision, could a four-judge bench or even a full court trump the constitutional provisions enacted by 342 members of the National Assembly and another 104 members of the Senate representing 180 million people?

The SC, while hearing constitutional challenges to the 18th Amendment in its interim order of October 21, 2010, had referred to parliament to reconsider Article 175-A as prescribed in the 18th Amendment “to ensure that the appointment process is in consonance with the concept of the independence of judiciary, separation of powers and to make it workable...”. The order had also required that the parliamentary commission hold in-camera meetings and that the parliamentary commission will have to record reasons for rejecting names proposed by the judicial commission. These concerns were addressed by the Parliamentary Committee on Constitutional Reforms, which includes representatives from all political parties. But the Committee on Constitutional Reforms did not agree with the Court’s opinion that the parliamentary committee’s decision and reasons thereof shall be justiciable. Therefore, the constitutional scheme as amended by the 19th Amendment made the decision of the parliamentary committee final and binding.

A day earlier the deputy attorney general, KK Agha, had informed the court that the reasons given by the parliamentary committee for not accepting the judicial commission’s recommendations were based on “damaging evaluations” made by the chief justices of relevant high courts. The concerned chief justices are also members of the judicial commission for the appointments to the high courts. So what went wrong? Why were the chief justices’ observations disregarded by the judicial commission headed by the chief justice of Pakistan? According to Asma Jahangir, President of the Supreme Court Bar Association, the facts placed on record showed that the process allowed by the judicial commission, rather than the one followed by the parliamentary committee, was bewildering. Clearly, the judicial commission should not have recommended names that had been objected to by the chief justices without giving due consideration to such objections.

The Supreme Court’s latest decision has once again put a much broader principle at stake than the concern raised by Honourable Justice Khawaja in his remark, and it is the application of the universally acknowledged principle of transparency through accountability and broader participation in the appointments of judges. It was in adherence to this principle that parliament had introduced changes in the mode of appointments to the superior judiciary. The promised detailed order on the constitutional challenges to the 18th Amendment is still awaited. Will the honourable court reconsider its stance and let the principle of parliamentary supremacy rule, rather than overruling the peoples’ will as enshrined in parliament?

Published in The Express Tribune, March 6^th, 2011.