The black box

The PTI has expressed its desire to introduce a constitutional amendment to curb the practice of horse-trading in the Senate elections. This is a welcome move. I would propose that if the path to amending the Constitution is being explored, then it might be prudent to consider adding another proposal to the mix: a change in the appointment process for the High Courts.

The 18^th Amendment was supposed to create a system for judicial appointments that involved the input of two institutions: The Judicial Commission of Pakistan (JCP), and a Parliamentary Committee. In 2011, the Supreme Court decided Munir Hussain Bhatti v Federation of Pakistan and effectively rendered the Parliamentary Committee’s role redundant. Then, in 2013, through its decision in Reference No 1 of 2013 it vested disproportionate authority over judicial appointments to the Chief Justice of Pakistan, who is just one of the many members of the JCP. This was done in addition to Rule 3(2) of the Judicial Commission of Pakistan Rules, which states that only the Chief Justice can initiate the names of candidates for appointment to the High Courts.

And thus, a process that was supposed to have the input of multiple stakeholders across two institutions of government is effectively at the discretion of one man.

Perhaps if there were clear, objective guidelines for the exercise of this discretion that would have eased some concerns regarding the overwhelming power to shape this nation’s history granted to one person. Unfortunately, no such guidelines exist. We know next to nothing about what is discussed in meetings of the JCP since everything is deemed confidential. We are in the dark about why certain individuals are selected to become High Court judges and why others are not. Each time a proposed list of names for elevation to any High Court is published, the legal community has no idea apart from rumours and gossip as to what was taken into consideration in putting the list together.

In numerous judgments, the Supreme Court of Pakistan has stressed the need for transparency, accountability, and objective decision-making by all other institutions of government. Yet, the appointment process for High Court judges lacks all three elements.

This isn’t an issue that can be brushed aside. A person who is appointed to be a High Court judge has security of tenure till the age of 62. If they become Supreme Court judges, they have till the age of 65. During that period, they have enormous amounts of responsibility regarding the interpretation of constitutional rights and obligations. Especially since, apart from their usual responsibilities, the judiciary has taken it upon itself to dismiss elected prime ministers, reserved the power to strike down constitutional amendments, and adjudicated over government policy. All of this is done while being an unelected institution.

People deserve to know the basis upon which these decision-makers are appointed.

Of course we have to be conscious of history. A history that involves repeated instances of executive interference in the judicial process. So, while the current process may be unacceptable, neither can we revert back to the abyss from which we climbed out of.

Instead, there needs to be, as in all constitutional structuring, a balanced approach. Alternatives must both uphold the independence of the judiciary while allowing for the creation of objective guidelines that can help stakeholders reach an agreement over those best suited for holding judicial office.

It would make sense to resurrect the process that was proposed by the 18^th Amendment with some modifications.

For example, a list of objective characteristics could be made mandatory to be taken into consideration by the JCP in preparing a short-list of candidates. Inspiration can be drawn from similar criteria in other jurisdictions. New Zealand’s Crown Law Office has a list of four factors that are considered to assess suitability for judicial office. These are: legal acumen, quality of character, personal technical skills, and reflection of society. Each of these is elaborated upon. Quality of character, for instance, involves assessments of patience, honesty, and integrity. Personal technical skills encompasses communication skills, management and leadership ability.

After preparing a short list keeping these considerations in mind, the JCP would send it to the Parliamentary Committee who could provide feedback and give an opinion on the candidates it prefers along with reasons mapped against the objective factors proposed. These could be made publicly available. The JCP could then take a decision through a majority vote — the CJP’s vote holding no more weight than any other.

Another alternative function for the Parliamentary Committee could be to assume a role similar to the American Bar Association (ABA) in the United States. From the time of president Eisenhower, the ABA has been given an indication by the president of people that were being considered for federal judicial appointment. The ABA would then assess the candidate’s qualifications, again based on objective criteria, and give a rating reflecting the candidate’s suitability for the role. These recommendations are not binding on the administration, but they play a welcome role of scrutiny.

The Parliamentary Committee could work with the Pakistan Bar Association to come up with this rating for each candidate. The reason I do not want the Pakistan Bar Association to solely adopt this role is because it may transform the process into a chance to solicit votes in exchange for ratings.

It is almost certain that any constitutional amendment to reform the judicial appointment process will not be easy to get through the Supreme Court. This is because the court still bears the scars of repeated executive interference. But all institutions of government must evolve to strengthen our democracy. The current system is too opaque and too arbitrary to be deemed satisfactory. The scars of the past can give us caution, but they should not hold us hostage.

Published in The Express Tribune, November 24^th, 2020.

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