PARLIAMENT, through the 18th and 19th Amendments, established the judicial commission and parliamentary committee for the appointment of superior court judges.
The former nominates individuals to don the coveted robes of a judicial officer, the latter either confirms such nominations for appointment as an additional or unconfirmed judge, or rejects them through a written order. If the nominated judges are temporarily appointed, subsequently, their case will once again be scrutinised, with the judicial commission either rejecting them or recommending confirmation on a permanent basis, and the parliamentary committee either approving or rejecting such recommendations.
Interestingly, since the establishment of these bodies, the role of the parliamentary committee has been significantly scrutinised and exhaustively outlined by the Supreme Court. However, the same cannot be said of the commission.
This is despite the fact that the commission’s job is of greater significance than the committee’s. The committee cannot recommend names for appointment to the judiciary; it relies solely on the nominations forwarded by the commission. And, if the commission decides not to recommend the confirmation of an unconfirmed judge, the committee can no longer consider that name, let alone make the commission reconsider its decision.
Confirmation doubts prevent lawyers from taking up judicial service.
Therefore, ensuring transparency in the processes of the commission is pivotal, especially since the lack of transparency discourages lawyers from seriously considering judicial service. In a system where judges are chosen from the bar as well as the subordinate courts, such discouragement militates against the principle of diversity on the bench, which is necessary for judicious decisions in varying circumstances and of a considered nature.
Perhaps what is more worrying is that at the age of 45 — when an advocate may qualify for elevation to the bench — the best of the bar will probably already have a flourishing practice. If this is coupled with an appointments’ process where the candidate has no idea what criteria he must fulfil for the purposes of being nominated or recommended for confirmation as a judge, the likelihood of such a lawyer considering judicial service is slim.
If such a lawyer does agree to and is appointed as an unconfirmed judge, another problem arises in the dearth of standardised criteria on which his performance could be adjudged for confirmation.
His anxieties are exacerbated by the fact that the commission usually recommends appointment of unconfirmed judges for one year, and after that, it has been known to extend ad hoc appointments for an additional year before finally deciding on whether or not to recommend making the judge permanent.
This has created an unusual situation where some advocates desiring judicial office have had to wind up their flourishing practices for an extended period without any idea whether they would be confirmed. As a necessary corollary, if they are rejected, such lawyers face serious setbacks in coming back to the bar without the burgeoning practice they once possessed. This has served as an impediment to lawyers considering judicial service.
However, although problematic, these issues are not impossible to address. Firstly, by amending the pertinent rules, the minimum quorum for conducting a meeting of the commission should be set. This appears to have assumed greater significance after the commission’s decision on May 11, 2015, whereby it purportedly denied confirmation to two unconfirmed judges on an occasion when no constitutionally mandated representatives of the Pakistan Bar Council, Sindh Bar Council, or the attorney-general, were present. The move has created much controversy and uneasiness in the bar.
Additionally, a set criterion should be publicly elucidated to ensure greater transparency in appointments of unconfirmed judges as well as confirming them. Upon nomination and appointment as an unconfirmed judge, if the commission is of the opinion that the judge falls short of the notified standards, it may intimate the same to him, along with copies of material supporting such opinion. On the basis of this, the judge should be given an opportunity to rebut such reservations through a personal hearing.
If the commission is still of the same opinion after this process, it may reject appointment on a permanent basis through a reasoned order. A copy of the order may be sent to the justice in question, who would retain the right to either keep the matter private, or release it for public consumption.
In this manner, although the reluctance and anxieties of the bar may not be totally addressed, these changes may help in effectively streamlining a process, which though still able to produce a variety of promising and brilliant judges, has become a source of alienation for talented segments of the lawyers’ community who desire to join the bench for a greater cause.
The writer is an attorney at law.
Published in Dawn, June 2nd, 2015