The deliberations leading to the passing of the 26th constitutional amendment acknowledged the need to improve the criteria and bring transparency in the appointment process of superior court judges. The recent increase in the number of judges in the apex Court and the Islamabad High Court have also been formalised through amendments in the relevant laws. Effectuating the 26th constitutional amendment, the 30th Chief Justice of Pakistan was selected by the Special Parliamentary Committee in a meeting held in camera. What remained their considerations for the choice remain confidential. Likewise, before taking the oath, what the present Chief Justice contemplated will also remain unknown.
The power of appointing judges by those who rule and the privilege of being appointed as a judge is not a new concept. Muslim history is replete with examples which today may seem bizarre. According to Wael B Hallaq, "jurists are reported to have wept - sometimes together with family members - upon hearing the news of their appointment" and "others went into hiding, or preferred to be whipped or tortured". Abu Qilaba al-Jarmi chose to leave town; Imam Abu Hanifa was imprisoned and flogged for his persistent refusal; Imam bin Hanbal responded with a vehement negative to Imam Shafi who had sought the former's interest; bin al-Muzani claimed ignorance of the law when instructed to explain his refusal. There was no scarcity of potential qualified candidates, however, as Muhammad Khalid Masud et al point out they "either refused to accept such appointments or had to be cajoled to do so, presumably because they were reluctant to associate themselves with a state regarded as unjust or impious".
A closer look reveals that the reluctance and at times refusal by such jurists and legists, who were mostly deeply religious men, was largely based on the apprehension that the rulers "used the 'qadiship' as a form of patronage" and acceptance of judgeship meant complete subservience to the ruler's dictates. Therefore, an association which demanded complete allegiance to the ruler's political will and control was unacceptable. Avoiding taking up such a position was, in some of the cases, the preferred choice. It is reported that in an effort to encourage Abu Qilaba al-Jarmi to accept judgeship, it was said to him: "If you get it right you will attain a great reward." Presumably "reward" meant both the worldly and in the Hereinafter. Abu Qilaba, in his wisdom, replied: "The one who is drowning in the sea, how long can he swim?"
The Muslim history, however, also establishes that it was not always that the jurists and legists refused judgeship. As early as since the days of the Prophet (PBUH), many men of remarkable integrity and legal acumen took up the task when told to do so because those appointments were directly made by the Prophet (PBUH) himself or by the Caliphs (RA). There was complete reverence and obedience to the appointing authority. Moreover, the appointments were ad hoc and made as per need basis. And the Prophet (PBUH) had set the matter clear when he said, "If anyone desires the office of Judge and seeks help for it, he will be left to his own devices; if anyone does not desire it, nor does he seek help for it, Allah will send down an angel who will direct him aright."
With the passing of time, the interplay of law and politics evolved and the Muslim rulers who subsequently came understood the need that their official acts must be legitimised by jurists and legists in order for the ruler to be seen as a just and fair ruler. This relationship dynamics, therefore, came into being and continues to exist till date. The common thread, historically, however, in cases of lack of interest or refusal and also of acceptance is attributable to the fact that the candidates, who all were men of immense knowledge, carried no worldly desire of having the post, despite the grandeur and generous remuneration that came with it. The underlying deciding factor remained their honest belief that they were competent for judgeship and with Godly fear realised the significance of the responsibility demanded of them. On the other hand, those who were in charge of the affairs of the Muslims were advised to strive to place in positions of responsibility persons able to fulfil such duties; no one person was to be offered the position on the basis of his own desire to hold such a post; in fact such a desire would exclude him from being appointed. Citing a tradition narrated by al-Hakim in his Sahih, Ibn Taymiyya states: "Whosoever uses this position to appoint an unsuitable person, knowing that there is someone more deserving of the position, indeed, he has betrayed the Almighty, his Prophet [PBUH], and the believers."
The forgone conclusion is that there is a responsibility of self-realisation on the candidate to judgeship that blanket acceptance of the ruler's policies is not a corollary to holding the office of the judge. Similarly, the ruler who holds the power to appoint must appoint the most suitable regardless whether the candidate would uphold the ruler's own ideology. It is given that the more the ruler complies with these imperatives the more legitimising support it will receive from the judiciary. When caliph Abu Jafar al-Mansur wrote to his Basran judge, Sawwar, about a case, the judge dismissed the caliph's request holding it legally unwarranted. Offended by this, Mansur resorted to threats, whereupon, an adviser of Mansur told him: "O Commander of the Faithful, Sawwar's justice is, after all, an extension of yours."
Those who appoint and those who are appointed bear equal responsibility. The 26th constitutional amendment has laid down a new process of appointment and it is hoped that this new process will be perfected on the basis of the old principles that have been passed down and the true essence of the appointments is honoured.
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