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Judges in contention

The appointment of judges has remained a point of contention amongst the bar councils and judiciary for over a decade

By Hasnaat Malik |
PUBLISHED May 23, 2021

Despite involvement of all relevant stakeholders, the incumbent process of superior court judges appointments have remained under question for the last one decade. The new procedure of judges appointments were introduced through 18th constitutional amendment wherein Article 175 A of constitution was inserted in 2010. Two constitutional bodies namely Judicial Commission of Pakistan (JCP) and Parliamentary Committee on Judges Appointment were formed.

The Chief Justice of Pakistan (CJP) is chairman of JCP. Other four senior Supreme Court judges are also members of the commission. A retired Supreme Court Judge, Attorney General for Pakistan (AGP), Federal Law Minister are representatives of the Pakistan Bar Council and are also the members of the commission.

In case of appointments or confirmation of high courts judges, respective high court chief justice, senior puisne judge, respective provincial law minister, provincial bar council representative are also included as members of the commission.

The CJP, in his capacity as chairman of JCP, summons the meeting of commission to consider appointment or elevation and confirmation of any judge. The Parliament Committee on Judges Appointment comprises eight members wherein four belong to the National Assembly and four are senators. There is also equal representation of government as well as opposition in the Parliamentary Committee.

Soon after the passage of the 18th constitutional amendment, the superior bars challenged the new procedure regarding the appointment of judges in the Supreme Court. The superior bars led by Hamid Khan Group (a professional lawyers group) contended that the new process regarding judges appointments is against the independence of judiciary.

In October 2010, a 17-judge full court led by former CJP Iftikhar Muhammad Chaudhry referred the matter to the parliament with certain proposals in the procedure of judges appointment. The full court in its short order had proposed that instead of two most senior Judges of the Supreme Court being part of the Judicial Commission, the number should be increased to four most senior judges. Likewise the court noted that when a recommendation has been made by the Judicial Commission for the appointment of a candidate as a judge, and such recommendation is not agreed to or agreeable by the Committee of the Parliamentarians as per the majority of three fourths of its members, the Committee shall give very sound reasons and shall refer the matter back to the Judicial Commission for reconsideration. The Judicial Commission, upon considering the reasons if again reiterates the recommendation, it shall be final and the president shall make the appointment accordingly. The short order stated that the proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained.

However, the parliament agreed to include the Supreme Court proposals in the procedure through the 19th constitutional amendment and thus, the superior judiciary started the appointment of judges through this new procedure.

During former CJP Chaudhry’s tenure, executive and superior bars raised serious questions over the judges appointment through this new process. Superior judiciary itself framed JCP rules 2010 wherein CJP was given unfattered discretionary powers regarding appointment of judges. Similarly, senior lawyers contended that the Supreme Court in Muneer Bhatti case had made the Parliamentary Committee on Judges Appointment ineffective.

Despite giving dissenting opinions by law minister, AGP, bars representatives, majority members of JCP - who belonged to the judiciary - approved nominations for judges during ex CJP Iftikhar’s tenure.

Likewise, there is an allegation that during the tenure of ex CJP Iftikhar, the competency factor was overlooked and judges were appointed on the basis of favouritism and nepotism. Likewise, those who played an active role during the lawyers movement, were given a preference in the appointment process. There is also the perception that those lawyers who were at the forefront during the movement were also then able to choose to appoint as their juniors and chamber fellows.

On the other hand, superior judiciary had refused to reconsider the names of former judges who were ousted through the July 31, 2009 judgment. Though very competent judges were removed through that verdict wherein November 3, 2007 emergency and Provisional Constitutional Order were declared as unconstitutional.

One section of lawyers assert that if there is an issue of competency in the superior courts judges, then ex CJP Iftikhar Muhammad Chaudhry is responsible for that. However, many lawyers believe that during the former CJP’s tenure, the integrity of the nominees was prioritised in order to avoid any scenario where undue pressure from the military establishment to manipulate judicial proceedings in high profile cases may occur.

When opinions of the law minister, AGP and bars representatives were not given weightage in the appointment process, they announced a boycott of the JCP meetings. They insisted that the JCP rules 2010 should be amended to end discretionary powers of CJP in the process of the judges appointment. Their boycott was continued through to the end of the Pakistan Peoples Party government tenure.

The bars also remained critical of the appointment of judges during tenure of former CJPs Nasir ul Mulk, Anwar Zaheer Jamali and Asif Saeed Khosa. Special committees to consider proposed amendments within the JCP rules 2010 were also formed by former CJs but they yielded no results.

Ex Pakistan Bar Council Vice Chairman Abid Saqi, whose views on the matter have remained consisted throughout, also recently stated that the JCP should not become a judges’ consortium.

In September last year, Pakistan Bar Council organised an all political parties conference to discuss the issues regarding the appointment of superior courts judges. All major political parties leadership except Pakistan Tehreek-e-Insaf endorsed the superior bars concerns regarding appointment of judges through the present procedure.

Every stakeholder should play an honest role in ensuring transparency in judges appointment. The demands from the different bar associations that there should be meaningful consultations with their representatives before initiating names for the appointment of judges is legitimate. Firstly, superior bars should review their role in the process. Instead of recommending nominees on merit, the representatives of bars always prefer to flout names on the basis of nepotism. Whenever their recommended persons are accomodated during the appointment process, then they do not question the judges appointment process. This monumental flaw in the selection process needs to be rectified urgently in order to improve the function of judiciary proceedings in the country.

Similarly, there is also a debate going on as to whether the Supreme Court judges should hold informal meetings with respective high court chief justice before initiation of names in the JCP. One opinion is that there is no harm in the informal consultation between respective high court CJ and SC judges for finalising nominees for high court judges. However, top judges should recommend names to the respective high court chief justice on merit rather than on favouritism or nepotism. Likewise, there is need to amend the JCP rules to allow every member of the commission to propose names to high court CJ for consideration.

On the other hand, one section of lawyers is strongly objecting the practice of informal consultation for finalising the names. They say that it is the sole perogative of high court CJ and senior puisne judge to finalise the names for high court judges. Recently, ex LHC judge Ibaad ur Rehman Lodhi, in his speech, also questioned the role of SC judges in the selection of names for judges.

In this regard, the chief justice respective high court should initiate names after considering every aspect. He should avoid to propose names on the basis of his association or cast of any lawyer. In view of JCP, CJP in his capacity as chairman is empowered to form sub commitees comprising three to four JCP members to reconsider names proposed by high court CJ in the commission. The sub committee should submit its fundings during the commission meeting.

With the passage of times, the Parliamentary Committee on Judges Appointment has started to play an active role in judges appointments. After the Muneer Bhatti case judgment in 2012, the commitee members were disappointed as the court had minimised their role in the appointment process. Even the commitee decisions were overturned by the high courts through judicial orders.

Several proposals also came under consideration as to how the committee's powers could be secured. Moreover, the commitee members even staged protests and decided not to hold meetings to consider JCP members.

It is learnt that couple of years ago, the superior judiciary decided that the JCP will not reconsider the names, which would not be approved by the commitee. Same is being witnessed, when the commission did not reconsider one nominee for the judge of Peshawar High Court after rejection of his name by the Parliamentary Committee on Judges Appointment.

Similarly, in November 2019, the committee amended its rules wherein it was stated that interviews of nominees should be conducted before their approval.

Ex PBC Vice Chairman Abid Saqi said politically opinionated lawyers should be considered for the appointment of superior courts’ judges. He contended that there is no neutral judge.

He urged the parliamentary committee to prepare a questionnaire to gauge the intellectual commitment of the nominee with the constitution, on which he will take oath as a new judge, adding that the same practice is happening all over the world during the process of the judges’ appointments.

He said democratically sensitive judges should be appointed in the superior courts. Senior lawyers also urged the committee to ask nominees during interviews how much they are concerned about democratic institutions. Lawyer Asad Rahim Khan said, "We must remember that our judiciary self regulates and appoints judges owing to a history of executive abuse, when judges were whimsically removed by military rulers, and just as whimsically appointed by civilian premiers purely on basis of political affiliation." According to him, there is no harm in our parliamentarians playing a more proactive role in scrutinising judicial appointments, as long as it is in the light of our current constitutional arrangement. “Judicial candidates being interviewed by the parliamentary committee members that may lack the requisite knowledge of the law, judicial procedure, or recent precedent would not be a step in the right direction," he said.

Appointment process improved during incumbent CJP tenure

During his tenure, CJP Gulzar, in his capacity as Chairman of the Judicial Commission of Pakistan (JCP), allowed meetings to review judges appointments to be much more transparent. His approach in this regard drew much appreciation from the lawyers as well. Even members of the commission confirmed that every JCP member is being allowed to express his opinion during the meeting for the last couple of years. You can't imagine how JCP members deliberate on each name during the meeting,” one member of the commission revealed.

He believes that credit goes to incumbent CJP who provided friendly environment during the meeting. In the past, there was a practice that JCP members, who belonged to judiciary, had already taken decision before the start of the commission meeting. However, now every aspect is being discussed during the commission meeting.

Last year, the JCP decided not to entertain unsigned agencies’ reports in the process of appointment and confirmation of the superior court judges. The commission also resolved that it would not consider the agencies’ reports that lack supportive material to substantiate their findings. However, it is resolved that the government representatives – the AGP and the law minister – may summon agencies’ reports for their own consideration but would not entertain them until they are duly signed by concerned officials and supportive material to substantiate the claims attached with them.

In view of that decision, the AGP and the law minister are not barred from summoning unsigned agencies’ reports and they may form an opinion on their basis. Earlier, the AGP used to write to different agencies summoning their reports regarding nominees and the same were placed before the JCP. Now, if the reports are unsigned, they will not be placed before the commission.

Superior bars appreciate the JCP decision which will minimise the role of security establishment in the judges appointment process. They believed that it was a significant development after Justice Qazi Faez Isa’s case wherein the SC judge and superior bars accused agencies of conducting surveillance of judges.

It is being witnessed that Justice Qazi Faez Isa being member of the JCP is openly giving dissenting opinions during the meeting. His input in the appointment process is being appreciated by the bars representatives.

The last of couple of years, debate has also been ongoing on the elevation of judges to the Supreme Court. One section of lawyers want that judges should be elevated to the apex court on the basis of seniority. Last four SC judges were elevated against the principle of seniority. Even their appointment as Supreme Court judges were challenged by late ex PHC CJ Waqar Ahmad Seth. His petition is still pending in the apex court. On the other hand, a big section of lawyers believes that seniority should not be criteria in the elevation of judges to the supreme court. Integrity and competency should also be considered for elevation. They assert that it is the best legal minds of the country that should perform in the top court of country.

Likewise, it is matter of concern that female lawyers are not being considered for the appointment of superior courts judges. No female judge has so far elevated to the Supreme Court. Similarly, no lawyer from a minority community is being considered for the appointment. However, it is expected that the present CJP, as chairman of the JCP, will consider these aspects in the appointment of new judges.