Protecting the independence of the judiciary — I

The recent decision by the Supreme Court to override the parliamentary committee’s refusal to extend the tenure of six additional judges of the Lahore and Sindh High Courts has run into a surprising amount of criticism. Asma Jahangir, the redoubtable president of the Supreme Court Bar Association, has said the decision undermines the legislature and reduces the parliamentary committee to a rubber stamp. Others have not been so blunt but chatter in the media has certainly not been favourable.

As one of the counsels for the petitioners (in relation to the four judges of the Lahore High Court), I am in no position to be objective. Nonetheless, in the interest of a more informed debate, let me at least present the arguments made in court.

The bare facts of the case are that certain individuals were appointed for a period of one year as additional judges of the Lahore High Court and the Sindh High Court. At the time of their appointment, the process of confirmation or extension of tenure was governed by Article 193 of the Constitution. During their tenure, the process of appointment of judges was changed through the promulgation of the 18th Amendment to the Constitution and the introduction of Article 175-A. The 18th Amendment (and especially Article 175-A) was then challenged by a large number of petitions on the ground that the revised mechanism for appointment of judges was violative of the ‘basic structure’ of the Constitution. These petitions were heard at great length by the full strength of the Supreme Court (i.e., 17 judges). On October 21, 2010, the Supreme Court issued an interim order in which it stated (a) that the provisions of Article 175-A would operate in a particular manner; and (b) that parliament should consider certain recommendations summarised therein. Those recommendations were indeed subsequently considered by parliament and a number of the recommendations (but not all) were incorporated into the Constitution.

Prior to the 18th and 19th Amendments, Article 193 provided that appointments to the High Court were to be made by the president “in consultation with” the Chief Justice of Pakistan (CJP), the chief justice of the relevant high court and the governor of that province. As interpreted by the courts in a string of judgments starting with the famous case in 1996 of Al Jehad Trust, this actually meant that names would be supplied to the CJP by the chief justice of the relevant high court (who would have discussed the names with the governor concerned), that the CJP would then finalise a list of names and forward them to the president who was required to accept those names unless he provided “strong reasons” to the contrary in writing (and these reasons in turn could be reviewed by the Supreme Court). It was further held that the president was not entitled to act in his discretion in relation to the appointment of judges but was required to act on the advice of the prime minister.

The 18^th and 19^th Amendments changed the process of appointment of judges first and foremost by substituting institutions for individuals. In the case of the chief justice, he was replaced by a judicial commission (composed — in the case of high court appointments — of the CJP and the four most senior supreme court judges, the chief justice of the high court concerned and the senior-most puisne judge of that court, a retired judge of the Supreme Court, representatives of the Pakistan and provincial bar councils, the federal law minister, the provincial law ministers and the attorney general). In the case of the president (or more correctly, the prime minister), he was replaced by an eight-member “parliamentary committee”, composed equally of opposition and treasury members, which could reject names if six out of the eight so decided.

To return to the cases of the six judges, each had been appointed for a one-year term as additional judge. All of them were recommended for a further one-year extension by a unanimous vote of the judicial commission. All were rejected by the parliamentary committee on the basis of certain criticisms regarding their performance made by the chief justices of the relevant high courts.

From a legal perspective, there were three main questions which arose. First, were the reasons given by the parliamentary committee justiciable, (as in could the court even examine and review them? Second, what was the relationship between the parliamentary committee and the judicial committee? Were they sequential or independent bodies? Did the parliamentary committee sit in appeal on the nominations submitted by the judicial committee or did it sit in review? If so, what was the scope of permissive review? Third, assuming that the court could review the reasons given by the parliamentary committee, were those reasons valid or invalid?

Since the Supreme Court has yet to issue its detailed order in the case, it is impossible to tell exactly what the position of their Lordships will be in relation to these questions. Nonetheless, since the court did strike down the decision of the parliamentary committee, it can, at a minimum, be concluded that the court found in response to the first and third questions that (a) the reasons of the parliamentary committee are indeed justiciable; and (b) the reasons given were not valid.

Interestingly enough, the majority of the criticism till date has focused on the first issue of justiciability. Najam Sethi, for example, has argued that if the Supreme Court can examine the reasons given by the parliamentary committee, then “the whole exercise of the 18th and 19th Amendment will have been in vain and the critics of the Supreme Court will be proven right in their prediction that the court is seeking ’secession’ rather than independence.”

In my admittedly-biased view, Sethi and other critics of the Supreme Court are taking an unnecessarily alarmist view, at least in this particular case. To repeat, in this particular case, the Supreme Court did not act outside the judicial mainstream by deciding that the reasons given by the parliamentary committee would be justiciable. Instead, it was acting very much in line with a plethora of judgments to this effect. Furthermore, I would submit that it was never the intention of parliament to insulate the parliamentary committee from judicial review.

Published in The Express Tribune, March 14^th, 2011.