In a democratic system, the primacy of the elected institutions and leaders should be respected. – by Dr Hasan-Askari Rizvi
Beyond the executive-judiciary crisis
The executive-judiciary crisis has another dimension with implications for the future of democracy in Pakistan. This can also be viewed as an attempt by a non-elected state institution, i.e. the judiciary, to restrict the role of the elected state institutions, the executive and parliament, in its affairs.
The military was the first non-elected state institution to neutralise the edge of elected federal governments and parliament. The military resents any active role of the civilian government in its internal organisational and service affairs and disbursement of funds. Parliament has no control over what the military earns through its huge business and commercial activities. The military top brass make the decisive input to major areas of security and foreign policy and often feel unhappy when various parliamentary committees, especially the Public Accounts Committee, become inquisitive about the military’s financial affairs.
Now, the superior judiciary has made it clear that the elected executive and parliament has got nothing to do with the appointment of judges. For all practical purposes, the appointment of judges to superior courts has become the prerogative of the chief justice. The superior judiciary, like the military, has its own accountability process where the elected institutions do not have any role.
The key appointments to the superior judiciary cannot be left to one person, be it the chief justice or the president. Perhaps there is no democratic country where the top judicial appointments are controlled by the chief justice and the executive is to issue the appointment order for whosoever has been approved by the chief justice.
There is a need to bring a constitutional amendment to reverse this trend of negation of elected institutions by non-elected institutions and the appointment of the judges of the superior courts should be through a broad-based consultative process with no one exercising veto power. The elected president/executive cannot be reduced to a mere signing machine. There are two options available for consideration. Either adopt the method of appointment of judges suggested in the Charter of Democracy (CoD) with some modifications or the American system that gives a relatively free hand to the president in nominating the judges of the Supreme Court. However, these nominations become effective only after confirmation by the upper house of the Congress after a thorough scrutiny and public hearing by the relevant Senate committee.
In a democratic system, the primacy of the elected institutions and leaders should be respected. Non-elected institutions can enjoy autonomy as given in the constitution but these institutions should not stretch their autonomy to become ‘independent’ of the elected institutions. Any attempt by a state institution to overwhelm the other under any pretext can cause a collapse of the democratic process.
Dr Hasan-Askari Rizvi is a political and defence analyst.
Source: Daily Times
Although the storm over the judges’ appointments seems to have blown over, the issue of the procedure for such appointments remains controversial. Even if we accept without demur, as the government belatedly has done, that the sole prerogative for these appointments lies with the CJ, this is not in consonance with the well established need for checks and balances and the separation of powers between the institutions of state. There is a pressing need therefore, for the political forces in parliament to revisit this issue and reform the procedure along the lines that consultation aside, such appointments should enjoy vetting and consensus in parliament. That would ensure that neither the executive nor the judiciary is the sole arbiter of judicial appointments and that appointments under parliamentary oversight would enjoy a degree of transparency and across the board acceptability seldom enjoyed by appointments in the past, or arguably in the present. In other words, there is a need to revisit the Charter of Democracy’s recommendations on this issue.
http://dailytimes.com.pk/default.asp?page=2010\02\21\story_21-2-2010_pg3_1
The constitution of a state consists of three sources: the text of the constitution, constitutional conventions, and interpretations by the judiciary. In case of Pakistan, as the constitution has been abrogated, suspended and subverted on several occasions, constitutional conventions could not be developed. This leaves us with the written provisions as interpreted by the courts as the source of the constitution.
One may disagree with the way the courts interpret or have interpreted a constitutional provision; the same has to be accepted as the constitution itself confers this power on the judiciary to the exclusion of any other organ of the state.
The controversy over the appointment of the members of the superior judiciary arose not because the relevant provisions of the constitution as interpreted by the courts were vague or ambiguous but because the judicial interpretation did not seem palatable to the government.
Article 177 of the constitution provides that a judge of the Supreme Court shall be appointed by the president after “consultation” with the chief justice of Pakistan (CJP). The text of Article 177 itself does not provide that the consultation is binding on the president, which means that going by the text alone he is not required to concur with the opinion of the CJP as to the suitability of a person to be appointed to the apex court. All that the president is required is to discuss the matter of appointment with the CJP.
However, as mentioned in a preceding paragraph, constitutional provisions need to be seen not as they are in themselves but as these have been interpreted by the judiciary. It was in the Al Jihad Trust case (PLD 1996 SC 34) that the Supreme Court elaborated the meaning of the word “consultation” as contained in Article 177 and 193 (dealing with appointment of high court judges).
The court held that “the consultation should be effective, meaningful, purposive, consensus leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a 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.” It was further held by the apex court that if the president appointed a candidate found to be unfit and unsuitable for judgeship by the CJP and the CJ of the high court concerned, it would not be a proper exercise of power under the relevant provisions of the constitution.
Thus, briefly, the Al Jihad case judgment implied that the judges of the Supreme Court shall be appointed by the president on the advice of the CJP. The advice was binding unless the president had sound reasons to act otherwise, which have to be conveyed to the CJP. The judgment ended the executive’s discretion in the appointment of judges. That is why the then government, also of the PPP, had sharply criticised the same.
From an academic point-of-view, one may strongly differ with the court’s interpretation of the word “consultation” in the Al Jihad case. The authors of the 1973 constitution intended to give the executive a lot of discretion in the appointment of judges. That is the reason they used the word ‘consultation’ and not ‘advice’ in Article 177 as well as Article 193. Moreover, they did not provide that the consultation would be binding. And this is hardly surprising, because the appointment of judges is an executive function and consultation with the judiciary is meant to assess the fitness of a person to become a member of the superior judiciary. The Indian constitution (Article 124), from which the 1973 constitution has borrowed a lot, also provides that in the appointment of Supreme Court judges, the chief justice of India “shall always be consulted.” Besides, the president shall also consult such other member of the superior judiciary as he/she may deem necessary.
However, the judges on the bench in Al Jihad case thought otherwise, and interpreted the word ‘consultation’ in such a way as to make it synonymous with advice that is binding. While academically, everyone is entitled to hold his view, it is the view of the apex court that should prevail until reversed by another decision of the court or an amendment to the constitution. Either of this has not been done to date.
Some other issues were also settled in the Al Jihad case. It was held that no ad hoc judge shall be appointed in the Supreme Court while a permanent vacancy existed; that the most senior judge of a high court had a legitimate expectancy to be considered for appointment as the chief justice; and that any appointment in the superior judiciary made without consulting any of the consultees as interpreted in the instant judgment shall be ultra vires of the constitution.
The Al Jihad case verdict did not apply the principles of seniority and legitimate expectancy to appointment of a Supreme Court judge. Nor did it apply those principles to the appointment of the CJP, ostensibly for the reason that Justice Sajjad Ali Shah, who headed the bench, had earlier been made the CJP in disregard of the same. In particular, the verdict did not provide that while elevating a high court judge to a Supreme Court, the principle of seniority would necessarily be observed. This means neither the written provisions of the constitution nor the judicial interpretation necessitated elevation of a senior high court judge to the apex court. Hence, junior judges were elevated to the Supreme Court.
The principles of seniority and legitimate expectancy to the appointment of the CJP were applied by the Supreme Court in what is known as Asad Ali’s case, which resulted in the exit of Justice Sajjad Ali Shah from the country’s highest judicial office. Subsequently, the question of applying those principles to elevations to the Supreme Court came up for hearing in 2002 (PLD 2002 SC 939) when couple of junior Lahore High Court judges were elevated to the apex court. It was contended by the petitioners that the appointment of those judges had been made in violation of the principles of seniority and legitimate expectancy.
However, the Supreme Court held that “the scope of the principles of seniority and legitimate expectancy in those cases [Al Jihad Trust and Asad Ali’s] is restricted to the appointment of the Chief justice of a High Court and the Chief Justice of Pakistan and these principles neither apply nor can be extended to the appointment of Judges of the Supreme court.”
Defining ‘consultation’ and ‘seniority’
By Hussain H Zaidi
Sunday, 21 Feb, 2010
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/04-judges-appointment-qs-03