Constitutional amendment and judicial appointments — by Dr Hasan-Askari Rizvi

The long-awaited 18th constitutional amendment represents a rare political phenomenon of consensus among the political parties that are generally known for partisanship and polemics. No member voted against the amendment in both houses of parliament. The major reason that it did not face problems in the two houses was the long-drawn deliberations in the constitutional reforms committee that included all political parties represented in parliament.

The 18th Amendment is a detailed document that makes several significant changes in the constitution and removes the distortions caused by two military rulers, i.e. Generals Ziaul Haq and Pervez Musharraf. It is comparable to the 8th and 17th constitutional amendments of 1985 and 2003 respectively that introduced far-reaching changes in the constitution. However, there is one key difference between these amendments. The 8th and 17th constitutional amendments were meant to civilianise military rule and provide constitutional and legal cover to the actions and policies of the military regimes. The 18th Amendment represents the triumph of the democratic political forces because they joined together to promulgate an amendment that has made the constitution more democratic, shifted the balance of power in favour of the prime minister and parliament and expanded the scope of provincial autonomy.

The most outstanding feature of the 18th Amendment is the inclusion of three new fundamental rights: the right to education for children between the ages of five to 16 years, fair trial and due process, and freedom of information. The 18th Amendment has also done away with the tampering with the Objectives Resolution by General Ziaul Haq by restoring the word “freely” for religions and cultures of the minorities.

A section of lawyers has taken exception to the new method of appointment of judges of the superior courts, which involves a judicial commission headed by the chief justice of Pakistan and a parliamentary committee. They argue that the inclusion of political appointees in the Judicial Commission and the review of its recommendations by the parliamentary committee politicises the process of appointment of judges of the superior courts and undermines the independence of the judiciary. They think that the chief justice should have the exclusive power to make binding recommendations for the appointment of judges.

If we examine the methods of the appointment of judges of the superior courts in different countries, three methods can be identified: the sharing of appointment powers between the executive and the judiciary; virtual control of the judiciary over judicial appointments; and the executive and the legislature control the appointment of judges. The judiciary has no formal role in this process.

Most countries have procedures that provide for sharing the power of appointment of judges of the superior courts by the judiciary and the executive. The discretion of the executive varies from country to country but it is not bound to accept the recommendations of the chief justice.

Only a few countries give exclusive power of appointment to the chief justice and his senior colleagues. In India and Pakistan this power was acquired by the Supreme Court through its judgements. This was not originally written down in the constitution. In the case of India, the chief justice and senior judges of the Supreme Court exercise this power. In the case of Pakistan, one person — the chief justice — exercises this power because his recommendation has been made binding on the president by the judgement of the Supreme Court going back to 1996 and the Legal Framework Order (LFO) of 2002.

The third method, adopted in the US, provides for no role for the chief justice or other judges in the appointment of judges. The US president recommends the name and the Senate approves or rejects the name. Similarly, a judge of the US Supreme Court can be removed from office through impeachment by Congress.

It is not possible to suggest that one method of appointment is more suited to the independence of the judiciary than the other. It exists under all three systems. It is not correct to assume that the independence of the judiciary is undermined if the superior judiciary is not given the exclusive right to appoint its judges. This type of exclusive power does not exist even in the UK. The method of appointment cannot be the sole criterion to judge the judiciary’s independence. As a matter of fact, no single person should have the exclusive power to appoint judges to the superior courts. This should be a shared responsibility, perhaps with some weight to the opinion of the chief justice and his senior colleagues.

Pakistan’s experience suggests that complaints have surfaced about some judicial appointments under both systems of the pre-amendment period. The new system maintains the primacy of the judiciary for the appointment of the judges of the superior courts. The chief justice, two senior judges of the Supreme Court and a retired judge nominated by the chief justice constitute a majority in the Judicial Commission. The parliamentary committee comprises of eight members with equal representation of the government and the opposition and both houses would not be able to stop the recommendations of the Judicial Commission. The only step it can take is to return the recommendation back to the Judicial Commission provided at least six out of eight members favour such an action.

It is interesting to note that the main critics of the new system are the lawyers known for their anti-PPP and anti-Zardari disposition. This is their latest bid to embarrass the PPP-led federal government. It seems that partisan considerations are shaping the disposition of a section of lawyers towards the amendment.

The new system of judicial appointments is more consultative and collective rather than being dominated by a single person. If some lawyers are opposing it because they do not want the present federal law minister to sit on the Judicial Commission, he is not going to be in office for all time to come. There is a need to take a long-term perspective on the new method of appointment. If some weaknesses surface over time, parliament can make changes in it. However, the changes through non-parliamentary sources will have negative implications for the future of democracy in Pakistan, which is already under stress. Democracy and constitutionalism are needed more than anything else for the independence of the judiciary.

Dr Hasan-Askari Rizvi is a political and defence analyst

Source: Daily Times, 16 May 2010



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