Appointment of top judges now at politicians’ mercy

ISLAMABAD: Top legal minds have rejected the new procedure for appointment of superior judiciary judges, including the chief justice of Pakistan (CJP), as laid out under the 18th Amendment Bill passed by the National Assembly on Thursday.

“The procedure is incorrect,” says former attorney-general Anwar Mansur Khan point blank. Senior Supreme Court lawyer Akram Sheikh is a little more strident.

“All appointments of the judges would now be at the mercy of politicians, which would ultimately destroy the judiciary.”

Previously, under the Constitution’s clause 177, the president had the power to appoint the chief justice but in consultation with the sitting CJP.

The clause reads: “(1) The Chief Justice of Pakistan shall be appointed by the president and each of the other Judges shall be appointed by the President after consultation with the chief justice”.

Under the new arrangement provided by the 18th amendment, a judicial commission is to be constituted, consisting of the CJP as its chairman, two senior- most judges of the SC, former chief justice or former judge of the SC to be nominated by the CJP in consultation with the two member judges for a period of two years, federal minister for law and justice, attorneygeneral of Pakistan and senior advocate of SC nominated by the Pakistan Bar Council for a period of two years.

This commission will make rules and regulations and recommend a person to the President who would be the sole authority to appoint the CJP.

In contrast, the procedure of appointment of judges in India is a bit different and considered transparent. Under the Constitution of India, in terms of Article 124 the manner of appointment of Supreme Court judges is provided for.

However there is no specific provision as to the appointment of the CJ to the Supreme Court. Therefore the same procedure applies for the appointment of CJ as for the judges.

This in practice meant that the most senior judge in the SC would be proposed by the government of India to the President who would approve the same and thus the chief justice would be appointed in consultation with such other judges of the Supreme Court and the high courts in the states as the president may think necessary.

Here seniority did not mean the age but time spent as judge. Therefore the judge with the most experience in the SC was generally nominated by the government of India as the CJ.

In the US the Supreme Court is the highest judicial body and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the “advice and consent” (majority vote) of the Senate.

Once appointed, justices effectively have life tenure, serving “during good Behavior”, which terminates only upon death, resignation, retirement, or conviction on impeachment. In the UK, when the Constitutional Reform Act 2005 came into force on 3rd April 2006, Chief Justice became head of the judiciary of England and Wales, a role previously held by the Lord Chancellor.

From now on Chief Justices would be appointed by a special panel convened by the Judicial Appointments Commission in UK.