Elected or selected?

22 Dec 2016


IN 2010, parliament passed amendments to the Constitution changing the very edifice of judicial appointments in Pakistan. However, six years down the road, it appears that the new mechanism raised as many questions as it had sought to answer.

Serious reservations have been expressed with regard to the lack of transparency of the process by which judges are screened, selected and appointed in Pakistan, with the measures taken by the incumbent chief justice of the Lahore High Court perhaps being a unique exception. With the process itself mired in secrecy, it has been contended by many that such a system encourages internal groupings, which in and of itself can hamper selection on the basis of merit and qualifications.

Further, some have opined that the system is outdated, with the appointees not being representative of the people whose problems they seek to resolve, or in tune with the changing barometer of public and private morality and ideological inclinations. The latter aspect becomes all the more important with judicial posts having to answer questions of increasing political significance on a daily basis, with additional adjudication on issues of policy.

Some say the system of appointing judges is outdated.

In the US, at the federal level, the president nominates judges for vacancies with the Senate’s advice and consent. The rationale behind this method of appointment appears to be to not only ensure the selection of a judge with good credentials, but also of someone ideologically connected to the pulse of the people. It has been contended that the ideological element is imperative for judges to be able to take into account evolving social and economic realities in their decisions. However, criticism of this method revolves around the lack of judicial say in the process itself, as well as the likelihood of the politicisation of the judiciary.

In certain US states, inter alia, judicial appointments are made through elections for a fixed tenure upon the completion of which the judges are to campaign for re-election. The theory behind this method is that it makes judges democratically accountable to the people. Also, considering that judges are to preside over and decide disputes of the public, it is theorised that judges should be more in sync with the people’s pulse, and better connected to their concerns.

However, this mode has been marred by criticism that it compromises judges on account of their reliance on contributions by supporters, often advocates, for running campaigns, as well as the campaigns themselves, which can turn into personal attacks on and allegations against the other side. In such a system, judges appear more inclined towards making popular decisions to ensure a positive public sentiment with the objective of being re-elected.

Any decision to the contrary could prove fatal for one’s career as a judicial officer. For example, in 2010, in Iowa, three supreme court justices of the state, who upheld gay marriages in a unanimous decision along with other judges, were voted out by the electorate. It was the first time members of Iowa’s supreme court had been rejected by the voters.

Keeping this in mind, and the issues within its own system, Pakistan may benefit from a mechanism where a judge’s qualifications and ideological standpoint are both given consideration. Hence, it may be appropriate to reconfigure the appointments mechanism in a way in which the Judicial Commission, as currently constituted, may screen candidates on the basis of qualifications for appointment in the superior judiciary. Such a method would require transparency, eg by way of inviting applications from candidates for judicial posts, publicly declaring and establishing criteria for selection and confirmation, and, perhaps, including a written test to ascertain aptitude.

Upon such screening, it should be the Commission’s responsibility to recommend two or three names for each vacancy in the respective high courts. Such recommendations may be sent to the prime minister, or if conventional wisdom dictates, the National Assembly which, as the people’s representative, may then be empowered to select any one of the two or three recommended names for the vacancy in question.

In this way, the ability of the judiciary to regulate the qualification of the judges being appointed would be assured, whilst at the same time allowing the people’s representatives to appoint the judge most suited to the changing times. Obviously, the method in and of itself will not be a panacea to the intricate issues involving appointments. However, if nothing else, it may at least set the system on the correct course whereby an equilibrium between the qualifications of a judge and his ideological and social connectedness with the people can be reached.

The writer is a lawyer based in Karachi.


Twitter: @basilnabi

Published in Dawn December 22nd, 2016