Judicial appointments, again

The Supreme Court’s short order is somewhat enigmatic as it raises more questions than it answers. It is, however, being hailed by many as a sort of a political compromise.

The Order has only addressed issues raised as to the new mechanism provided for judges’ appointment under the new Article 175(A) and that too only superficially. Article 175(A) provides a two-tier mechanism for the appointment of judges by constituting the Judicial Commission of Pakistan to propose names for vacancies and the Parliamentary Committee to approve or disapprove proposed names. It provides for a more participatory mechanism with the clear possibility of transparency in appointments, whereas previously the appointments under Articles 177 and 193 (as interpreted in Al Jihad Trust case PLD 1996 Supreme Court 324) were a closed door affair with the Chief Justice of Pakistan’s opinion being binding. It was on this ground that the new article was appreciated by democratic-minded people.

What the court has held can be divided in two parts. One, the Court found it fit to refer to the Parliament to reconsider Article 175(A) in view of the issues raised by the petitioners so as “to ensure that the appointment process is in consonance with the concept of the independence of judiciary, separation of powers and to make it workable,..”. The reference back to the Parliament is made on the basis of an earlier decision in Hakim Khan versus the State (PLD 1992 SC 595). This is, however, questionable on two grounds. One, the reasoning in that decision was not sound. Justice Shafiur Rehman, a member of the bench in Hakim Khan, in his dissenting note stated that the court had no power to ask the parliament to reconsider constitutional provisions. Two, the matter at issue in that case was distinguishable from the instant one.

The other part of the order requires Article 175(A) to be put in full operation forthwith. The court does not stop at that. It goes on to provide the “manner” in which Article 175(A) would be put into effect. The order says that the chief justices of the Supreme Court, high courts and the Shariat Court will “initiate” the process by proposing names for vacancies on the respective courts in the Judicial Commission. Two, the Chief Justice of the Pakistan will “regulate” the “meetings and affairs” of the Judicial Commission. Three, the Parliamentary Committee will hold its meetings in-camera. Four, it Parliamentary Committee will have to record reasons for rejecting proposed names and such reasons “shall be justiciable by the Supreme Court”.

This is an interesting and innovative reading of the constitutional provision in question. Unfortunately, the short order does not make it clear how the Court is empowered to prescribe the manner. Further, it does not really address the issue of the independence of the judiciary. The new provision of Article 267(A) prescribes that the parliament can act to remove hurdles in the implementation of the new mechanism. Indeed, the Parliament could have framed the manner in which to put Article 175(A) into effect.

Article 175(A) sought to make the appointments in a more participatory, democratic and transparent manner which the prescribed mode seeks to undo. Through the prescribed manner the Chief Justice’s office is being granted undue power to “regulate” the “meetings and affairs” of the Judicial Commission. In camera proceedings will make the process less transparent and more vulnerable to behind the door dealings.

Also, making the Parliamentary Committee’s reasons for disapproval justiciable by the Supreme Court will once again place the appointments substantially in the hands of the judiciary. It may be argued that an overwhelming majority of constitutional democracies that uphold the cherished principle of the independence of the judiciary have judicial appointments processes that are broad-based, without a decisive role being vested in members of the judiciary itself. One hopes the Court considers these reservations or the prescribed manner will put on hold what Article 175(A) seeks to achieve.

Published in The Express Tribune, October 23^rd, 2010.