Protecting the independence of the judiciary — II

The current decision by SC should be seen not as a power grab but as a refusal to allow the dilution of judiciary.

The basic issue which arises is whether Article 175-A fundamentally reordered the relationship between the executive and the judiciary in relation to the appointment of judges or whether it simply took the pre-existing roles and institutionalised them. Our argument before the court was that Article 175-A did not fundamentally reorder prior relationships but had only ‘institutionalised’ them by replacing individuals with committees. Thus, it was argued that the term ‘parliamentary committee’ was a misnomer in that it was actually just a ‘committee of parliamentarians’ which was advising the prime minister and the president and thus the actions of the ‘parliamentary committee’ were not legislative actions but were, in fact, executive actions. It was further argued that, in so far as judicial review of executive decisions regarding the appointment of judges was concerned, there was a string of judgments in which the Supreme Court had held that the refusal of the executive to appoint judges recommended by the chief justice would require the executive to supply strong reasons, which would be justiciable. (For those interested, the judgments are as follows: Al Jehad Trust 1, PLD (Pakistan Law Digest) 1996 SC 324; Al Jehad Trust 2, PLD 1997 SC 84; Asad Ali, PLD 1998 SC 33; Ghulam Hyder Lakho, PLD 2000 SC 179; Supreme Court Bar Association, PLD 2002 SC 989; and, Sindh High Court Bar Association, PLD 2009 SC 879). In short, our argument was that reviewing the decision of the parliamentary committee was not the same as challenging the supremacy of parliament. Instead, it was a simple plain-vanilla example of executive action being subjected to judicial review.

More importantly, we had a simpler and less contentious argument to fall back on. In its order dated October 21, 2010, a 17-member bench of the Supreme Court had held that (a) Article 175-A required the parliamentary commission to give reasons (there was no explicit requirement then as per the 18th Amendment); and (b) that those reasons would be justiciable. Subsequently, the 19th Amendment had amended Article 175-A (12) to state explicitly that the parliamentary committee would have to give reasons if it rejected a nomination. In our view, not only was the order dated October 21, 2010 binding on the bench hearing the matter but that it was clearly not the subject of dispute since the 19th Amendment had, in fact, made explicit the requirement to give reasons and since the 19th Amendment did not contain any express provision excluding the jurisdiction of the Supreme Court.

In terms of the actual merits of the reasons given by the parliament, we had two main arguments. The first argument was that the parliamentary committee and the judicial committee are not sequential bodies with one sitting in judgment on the other. Instead, our argument was that — again as per a string of prior judgments — each was paramount in its area of expertise. Thus, the opinion of the judicial committee was entitled to primacy in relation to the competence and professionalism of a candidate, while the parliamentary committee could, at best, be entitled to primacy in relation to issues regarding the antecedents of a candidate. After all, how is it that six members of parliament, with a grand total of zero legal and judicial experience, would be better qualified to judge the professional qualifications of a judge as opposed to a body representing the collective wisdom of the Supreme Court, the relevant high court, the federal government, the provincial government and the bar organisations?

The second argument we presented was that it was grossly irrational of the parliamentary committee to rely exclusively on negative comments contained in the evaluation of a judge by the chief justice concerned, when that same chief justice had voted to give an extension to the same judge. In other words, unless one presumed that the chief justice concerned was completely irrational, it was clear that the negative observations had been outweighed by other positive attributes of the concerned judge. None of those positive attributes had been discussed or even mentioned by the parliamentary committee in its decisions. Moreover, the parliamentary committee had not made any attempt to argue that the negative aspects noted were so serious as to overwhelm all the positive attributes of the judges concerned. All that the parliamentary committee had done was to cherry-pick a few choice negative phrases in relation to each judge and ignore the rest of the record. By any applicable standard, this was unacceptable.

As I have already noted, the Supreme Court has yet to issue detailed reasons for its short order dated March 4,2011. The detailed judgment, as and when it arrives, will certainly be open to criticism. The purpose of this article is solely to provide for a fuller context in the meantime. However, there is one basic point which should be kept in mind. The appointment of judges and the fundamental right of access to justice are inextricably interlinked. The judiciaries of Pakistan and India decided long ago that they could not meaningfully protect their independence without the ability to ultimately control the process of the appointment of judges. There are those who stick to a doctrinaire assertion of parliamentary superiority in this context, but overall, their ranks are few. Instead, the reaction over the past 15-odd years to the Al Jehad case (and its Indian equivalent, the AOR Association case) has largely been favourable. Given that fundamental perspective, the current decision by the Supreme Court should be seen not as a power grab but as a refusal to allow the dilution of one of the fundamental pillars of judicial independence.

Published in The Express Tribune, March 15^th, 2011.