Selection of judges
By I.A. Rehman
Thursday, 21 Jan, 2010
According to some well-involved sources a new row between the judiciary and the executive has begun and the issue is the appointment of judges to the superior courts.
The case of filling a large number of vacancies in the Lahore High Court has been hanging fire for quite some time. A serious difference of opinion between the judicial and executive organs of the state has apparently developed on the filling of a fresh vacancy in the Supreme Court.
Judiciary-executive differences have a fairly long history and the stories of the executive’s manipulations against the judiciary, including the way chief justices Yaqub Ali, Sajjad Ali Shah, Saeeduzzaman Siddiqui and Iftikhar Chaudhry were removed, are well-known.
In any country blessed with responsible and upright authorities the constitutional scheme of appointment of the judges of the superior courts should not have presented a serious difficulty, but Pakistan has not been that fortunate. Here the judiciary has had to supplement the constitutional provisions with its own rulings.
The most exhaustive Supreme Court ruling came in the Al-Jehad Trust case in 1996. Some of the court’s conclusions in this case were:
1. The opinion of the chief justice of Pakistan and the chief justice of the high court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the president/executive.
2. Permanent vacancies occurring in the offices of the chief justice and judges should be filled within 30 days except for unforeseen situations when the period may be extended to 90 days.
3. No ad hoc judge can be appointed to the Supreme Court while permanent vacancies exist.
4. The most senior judge of a high court is entitled to be appointed as chief justice except where concrete and valid reasons are recorded by the president/executive.
5. Additional judges of the high courts are entitled to be confirmed, if vacancies exist and if they are recommended by the chief justice of the high court concerned and the chief justice of Pakistan.
6. The political affiliation of a candidate for judgeship may not be a disqualification provided the candidate meets the eligibility test and is appropriately recommended.
7. Any appointment/confirmation of a judge without the mandatory consultation with the consultees identified in the constitution would be invalid.
The implementation of this verdict posed many problems. Differences between the judiciary and the Punjab government were reported in the spring of 1997, though both sides denied this. Later in the same year a far more serious clash between the executive and the judiciary developed when the country’s chief justice recommended the appointment of five Supreme Court judges. The government issued a presidential notification whereby the Supreme Court’s strength was reduced to 12, and thus demolished the case for new appointments. The notification was later withdrawn but while the government insisted that the apex court’s strength was to be fixed by parliament, the Chief Justices Committee called for implementation of the chief justice’s recommendations. This tussle eventually led to a mob attack on the Supreme Court and the deposition of the author of the Al-Jehad judgment himself.
Although the Al-Jehad case judgment has not always been scrupulously followed it is still frequently relied upon. In addition, after the restoration of the judges last year the National Judicial Policymaking Committee laid down a few principles which were later on endorsed at a conference on the new policy’s implementation.
The key recommendations were that judges working on positions lower than their status were to be recalled, that the vacant posts of judges must be filled on an urgent basis so as to discourage ad hocism in judicial appointments, that all selections be made on the basis of competence and integrity, and that candidates for judgeship should not be closely associated with a political party.
It should be possible to resolve the present difference of opinion within the framework evolved over the years. The prime minister also has categorically dispelled the possibility of a clash with the judiciary. However, two questions will pose problems. First, parliament’s right to prescribe the judiciary’s terms and conditions cannot easily be denied. Secondly, what will happen if the judiciary makes exceptions to rules made by itself?
But that is not all. Political parties and other civil society organisations have been making suggestions on the subject for many years. Civil society has been vigorously pleading that the state’s chief justice should be appointed by the president in consultation with both leaders of the house and the opposition in the National Assembly. Strangely enough, nobody is referring to the proposal for the judges’ appointment through a commission contained in the Charter of Democracy. There have also been suggestions that the judges’ appointments should be subject to public hearings. However, in view of the lack of any tradition of a serious, responsible and disciplined discourse this idea cannot be recommended in Pakistan.
There remains a broader question of the judge’s social orientation that can no longer be ignored. The judiciary in most countries belongs to the conservative stock and is seldom found in harmony with the democratic and egalitarian aspirations of the masses, particularly in a developing society. The difficulties the judiciary in Pakistan faces in doing justice to the weaker sections of society — women, non-Muslim citizens and workers — have sometimes been admitted by high judicial authorities themselves. If Pakistan is to be a democratic, welfare state all its organs, the judiciary included, must be geared to the realisation of these objectives.
This debate is not peculiar to Pakistan. The British judiciary took decades to grow out of the shadows of the conservative nobility. When Mr Churchill chose a Tory MP to succeed Sir Maurice McGuire as the chief justice of the federal court of India the outgoing chief justice vehemently protested at the passing over of competent Indians who understood the people better, including Ch. Zafrulla. In the United States the Republican presidents’ bids to pack the supreme court with conservative judges and the Democrats’ efforts to put liberals on the bench have often led to spectacular contests.
This emphasis on the judge’s disposition does not conflict with the principles of competence and integrity. The conservatives and liberals both are supposed to be competent persons of integrity and both can fairly interpret the constitution and the law. It is while interpreting the law that they fall into the locally recognised categories of judges who are inclined always to justify the state’s actions and those that are inclined to give relief to the victims of state’s oppression.
Thus, it is time to start assessing candidates/nominees for judges’ offices not only on the basis of competence and integrity but also on the basis of their record in relation to the rights of the disadvantaged — especially women, minorities, workers and the poor generally. Justice will be better served if those chosen to dispense it are sensitive to the disadvantaged people’s rights to equity and fair play.