Selecting the superior judges — by Elf Habib


Giving a final and binding say to the chief justice, despite his sublime office and status and worthy of all respect and reverence, destroys the very spirit and purpose of popular will and sovereignty. It would be an unfortunate transition from the dictatorship of the generals to the dictatorship of a judge

The controversy created by the rejection of a summary recommending the reappointment of a superannuated superior judge as an ad hoc incumbent in the apex court again riled parts of our mercurial media determined to demonize and dismantle the present government. The media mavens are being routinely reinforced by the new holy trinity of the angels of the establishment, the cloyingly pompous clergy and the general opponents and critics of the ruling alliance. The government, however, may have some sound reasons to skip the suggestions ranging from a statement by Qazi Anwar, President of the Supreme Court Bar Association (SCBA), opposing the appointment of ad hoc judges despite his profuse personal regard for Ramday’s stature and eminence, to an espousal of the Charter of Democracy (CoD) to end the practice of such ad hoc appointments. This may be inspired by the general contemporary practices in democratic polities as well as the ethical and legal imperatives to discourage temporary inductions to ensure real independent jurists confident of the continuity of their careers. The fear of a fleeting tenure may not deter the few really committed, courageous and confident jurists, yet the way our judiciary stuck to their jobs and genuflected to the whims of a dictator general has been an irrefutably shameful standard of its performance. The president, similarly, perhaps may have been moved by a general overall reverence for Ramday’s seniority and standing, surpassing the honour of a mere short stint. This is because ad hoc appointments, under some circumstances, may be condoned for relatively newer and fresher inductees to afford them more on the job, while a jurist of Ramday’s marathon run and acumen would be more valuable for some other relatively more memorable and lasting contribution like leading some reforms commission or a foundation for poor and the distressed litigants. Many sections in society also feel that after his extraordinarily exhaustive and illustrious innings, Ramday himself ought to decline the nomination and defuse the tension rattling the fledgling representative system.

Failing his voluntary withdrawal, many forces would use his name for hounding Zardari. Justice Sajjad Ali Shah’s interpretation of the constitutional clause that the superior judges were to be appointed in consultation with the Chief Justice of Pakistan mandated that the consultation would be meaningful and binding on the president. He has thus transformed the centuries old meaning of consultation from merely seeking an opinion, feeling or comment, to that of a binding edict. The decision evidently even negated the will of the framers of the constitution. The intention of a binding nature of advice has been explicitly specified twice as of the premier’s advice to be binding for the president and that of the chief minister on the governor. Sajjad Ali Shah was ousted following a bizarre drama of judicial jugglery during Nawaz Sharif’s government. Interestingly, a Lord Justice who wanted his will to be binding on the rulers could not enforce his authority even on his own constellation. What happened to the consultation dictum during the dictatorship is anybody’s guess, but with the return of a representative dispensation, the consultation cutlass is being brandished again.

The Supreme Court, in its indulgence, may relent in some cases, but the whole process of selecting the superior judges, including the rules governing their service, has to be streamlined in accordance with the democratic spirit and practices. In Britain, the premier parliamentary model, the House of Lords, i.e. the Senate, used to be the final court of appeal until 2005. The judges of the Supreme Court constituted since then are appointed by a commission guided by the Ministry of Law. The binding proviso of any judicial supremo similarly does not exist in Canada, Australia or New Zealand. In Canada, the premier selects the superior judiciary after a wider consultation. Even the formation of a parliamentary committee to conduct hearings to review the credentials of candidates is being considered. In Australia, similarly, appointments are made by the cabinet on the advice of the attorney general. In New Zealand, too, the power of appointment rests with the executive. In the US, a pioneering presidential model, the superior judges selected by the president have to go through a grilling by the Senate and the media to understand their views, conduct, the record and trend of their judgments. They are similarly elected by the Upper and the Lower Houses in Germany and also partially in Turkey. The final selection, thus again is a prerogative of the Legislature.

The executive, being the embodiment, icon, instrument and expression of the popular will and aspirations has to create and regulate various institutions and services including the judiciary, police and the armed forces. The judiciary, in turn, in democratic countries is free to constitute its panels, make decisions and regulate its internal affairs, but nowhere has a final say in its selection. Giving a final and binding say to the chief justice, despite his sublime office and status and worthy of all respect and reverence, destroys the very spirit and purpose of popular will and sovereignty. It would be an unfortunate transition from the dictatorship of the generals to the dictatorship of a judge. Parliament, thus, must act to streamline the procedure for the selection of the superior judges overriding Sajjad Ali Shah’s controversial interpretation. The procedure for the appointment has been already agreed in the CoD and may be improved by further consultation with other parties. But parliament certainly should not unnecessarily delay the process, waiting for a single Quixotic stroke of a century of amendments.

Related closely to the process of appointment are the facilities and the security of service of the superior judges. The equality of all and sundry is now being fervently advocated, particularly by the media and the judiciary and reportedly also formed the basis of quashing the NRO. The same principal of equality thus should be extended to the retirement age and other related facilities for the super judges. The process for removal of the chief justice, similarly, has not been explicitly specified in our constitution and has to be stipulated as by impeachment by the Senate or a specially constituted commission.

The writer, an academic and freelance columnist, can be reached at habibpbu@yahoo.com

Source: Daily Times