Politics of judicial appointments

By:  Asad Jamal

Friday Times , September 17-23, 2010

The Supreme Court’s recent decision to allow extension for indefinite period to additional judges, who were appointed to the four high courts about a year ago, marks another milestone. In a masterstroke the Supreme Court has done the unprecedented without a convincing legal foundation. In allowing the additional judges to continue to work has, for all practical purposes, stayed the operation of Article 175A, which was introduced through the Eighteenth (Constitution) Amendment, 2010.

Several provisions of the Eighteenth Amendment, including 175A, have been challenged before the Supreme Court in a number of constitutional petitions. Article 175 A lays down a new mechanism for the appointment of judges of High Courts, the Supreme Court and the Federal Shariat Court. Several observers and legal experts have questioned the validity of the order. Former Attorney General Malik Muhammad Qayum has even described the decision as an example of use of “law of necessity” in disguise.

The reason why the decision is being questioned is that so far, the legal position has been that the law under legal challenge is allowed to take its normal course till declared ultra vires. For instance, an eleven-member bench of the Supreme Court had concluded in Federation of Pakistan vs Aitzaz Ahsan that ‘It is a well-established principle of constitutional interpretation that until a law is finally held to be ultra vires for any reason, it should have its normal operation’ (PLD 1989 SC 61). Therefore, constitutional provisions even if under challenge should have been followed for the renewal of appointments.

Appointment of additional judges is possible under Article 197 which provides, among other things, that at any time when the office of a Judge of a High Court is vacant the President may appoint a person qualified for appointment as a Judge of the High Court to be Additional Judge as provided under Article 175A.

The new Article 175 A prescribes appointment of judges to superior courts on the basis of recommendations of a so-called Judicial Commission of Pakistan comprising the CJP, two most senior Judges of the Supreme Court, a former Chief Justice or a former Judge of the Supreme Court, Federal Minister for Law and Justice, Attorney-General for Pakistan, and a Senior Advocate of the Supreme Court nominated by the Pakistan Bar Council. The recommendations will then have to be approved by Parliamentary Committee comprising 4 parliamentarians from each house with two each belonging to the government and two each from the opposition benches.

The reason for the decision to allow extension is said to be “imminent judicial crisis” as the additional judges would have to go home in case they are not confirmed or granted extension. This would have affected the Balochistan High Court the most which would have lost all its judges except the Chief Justice. However, constitutionally this is possible only through the new mechanism for appointments of judges substituted through the Eighteenth Amendment. It is not clear what legal reasoning is made the basis for the decision to allow extension by the court. Would the sky fall if the additional judges were not granted extension by the SC? It would not, so it seems.

It may be recalled that if all the additional judges of the Balochistan had gone home, the court would not be without judges for the first time. After the SC’s decision of 31 July, 2009, which made all the PCO and other judges pack up, after their appointments were declared unconstitutional, the court remained dysfunctional for several weeks. The SC would have done a great deal of good to allow the government time to make the procedure of appointments functional. But a bit of digging into the politics of appointments would reveal that it is the power struggle between the SC on the one hand, and the parliament and the government, on the other, which resulted in the decision.

One of the main characteristics of the new mechanism provided under article 175A for the appointment of judges to superior courts is the dilution of the all-powerful role of the Chief Justice of Pakistan (CJP) who, as a result of the decision pronounced in Al Jihad Trust case (PLD 1996 SC324) had the final say in all such superior court appointments.

It may be recalled that the Eighteenth Amendment was passed with consensus by both the houses of the Parliament. Observers of judicial institutions and bar councils and associations had since long demanded appointment through a commission for appointments with wider participation of stakeholders so that concentration of powers in the hands of the Chief Justice could be done away with. A resolution passed in 2001 demanded for the formation of such a commission comprising the chief justice of Pakistan (as the chairman), two most senior judges of the Supreme Court, the four chief justices of the high courts, the vice-chair of the Pakistan Bar Council, the president of the Supreme Court Bar, the four presidents of the high court bar associations at the principal seats, an MNA nominated by the prime minister and another nominated by the leader of the opposition, and one senator from each province.

Signatories to the aforementioned resolution included Mr Qazi Anwar, the current President of the Supreme Court Bar Association (SCBA) and Mr Hamid Khan, the then President SCBA, both the gentlemen are considered to be pro-Chief Justice of Pakistan and are vehemently opposing the new procedure of appointments. Intriguingly, Mr Hamid Khan in a paper read on the occasion of Golden Jubilee celebrations of the SC in 2006 described the practice of the appointment of additional judges as repugnant to the principle of the independence of the judiciary because “till the time that these Judges are appointed as permanent judges or confirmed, they remain in a state of great anxiety and insecurity. Secondly, they get manipulated at the hands of their own Chief Justices or the governments in power” ( Role of independent judiciary in countries of South Asia, particularly Pakistan , Hamid Khan).

According to the born-again critics, the new appointment mechanism is against the principles of independence of judiciary from the executive as the latter would have a defining say under article 175 A. Judicial independence is said to be a basic feature of the Constitution and according to the critics is somehow linked to the appointment of judges by the existing judges. As a result, so goes the argument, article 175 A violates the constitution’s basic structure , a vague and undefined term and doctrine borrowed from Indian jurisprudence. The argument is being repeated and relied upon despite the fact that the SC has refused to adopt basic structure argument in a number of judgments over past three decades (For example, PLD 1973 SC 49, PLD 1977 SC 397, PLD 1996 SC 426, PLD 1998 SC 1263, and PLD 2005 SC 719) and yet the Supreme Court admitted the petitions for hearing in May and more than four months have passed since then but the petitions remain undecided.

Justice Khalil Ramday

If the remarks of the judges, mainly led by the Chief Justice himself, Justice Khalilur Rehman Ramday and Justice Jawad Khawaja, are any indication of their bent of mind, then there is little doubt that a majority of judges on the full bench would like the new constitutional provision struck down

. The thrust of the judges’ objection seems to be that the new process would subordinate the Judicial Commission to the Parliamentary Committee, and therefore it violates the principle of independence of judiciary. Justice Ramday has been more outspoken than his brother judges. He has made it clear in his remarks that he thought that the new procedure of appointments was a ploy to cut down the powers of the sitting Chief Justice who he thinks, as apparent from his remarks, is the embodiment of great virtues. Justice

Ramday was appointed an ad hoc judge of the court on his retirement early this year on the recommendation of the Chief Justice and despite strong opposition from the government. All the additional judges who have been allowed to stay till further orders all owe their appointments to the Chief Justice of Pakistan.

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