THE Chief Justice of Pakistan, Asif Saeed Khan Khosa, convened a meeting of the Judicial Commission of Pakistan on April 4, 2019. The commission, among other things, nominated retired justice Qazi Muhammad Amin to fill the seat left vacant following the retirement of former chief justice Saqib Nisar in January 2019.
For the uninitiated, the Judicial Commission of Pakistan is the body established under Article 175-A of the Constitution to make appointments to the country’s superior judiciary.
The committee comprises the chief justice of Pakistan, four senior judges of the Supreme Court, a retired judge of the Supreme Court nominated by the chief justice, the federal minister for law and justice, the attorney-general of Pakistan and a representative of the Pakistan Bar Council. For appointments in the high courts, the commission also includes the chief justice and a senior puisine judge of the concerned high court in addition to the provincial law minister and advocate-general.
The nominations are then forwarded to the Parliamentary Committee on Appointment of Judges, comprising parliamentarians from both houses and from across the aisle. The significance of the parliamentary committee, however, has been diluted by successive decisions of the apex court.
The confirmation process for judges is shrouded in mystery.
In Munir Hussain Bhatti’s case, the Supreme Court held that the parliamentary committee could not set aside the commission’s findings as regards the competence and fitness of its nominees.
While the parliamentary committee may dwell upon the antecedents of a nominee, it is obliged to record its reasons in cases where it rejects a nomination. These reasons shall, in turn, be susceptible to judicial review — the upshot of this being the commission’s and, more specifically, the judiciary’s control or (given the commission’s composition) its monopoly over appointments to the superior judiciary.
With three judges of the Supreme Court retiring this year alone, the import of the Judicial Commission of Pakistan cannot be overemphasised. The omnipotence ascribed or, as some argue, acquired, by the commission necessitates an analysis of the manner in which it functions.
Meetings of the commission are held in camera, its minutes are not published, and the only information that comes out is through news reports from anonymous sources. The procedure of judicial appointments is, thus, marred by opacity and shrouded in mystery.
In October 2018, for instance, the Judicial Commission of Pakistan, while confirming some appointments to the Lahore High Court, did not confirm the appointment of one of the court’s additional judges. The practice of not confirming certain additional judges is not new, and the commission may have well-founded reasons for not confirming the said judge. However, given that the process is steeped in secrecy, the public at large remains uninformed and thus unable to critique — or, for that matter, even defend — such decisions.
Judges not confirmed by the commission can be stripped of their dignity, becoming victims of a campaign of whispers and murmurs. Moreover, the public has no way of accessing the reasons that motivated the decisions rendered by the commission, nor can one learn about dissenting voices in its meetings.
At a time when the Supreme Court and our honourable judges chide the government for the arbitrary exercise of discretion and lack of transparency, this conduct must be addressed.
The apex court would, thus, do well to maintain the standards of transparency and objectivity that it holds every other institution in this country accountable to. This, at the very least, entails publishing detailed minutes of the commission’s meetings, including an account of dissenting views and the factors that eventually motivate the commission’s decisions.
The judiciary’s anxiety while including other institutions in the appointment process is understandable. Our nation’s chequered history has witnessed a number of attempts to trample upon the judiciary’s independence — fostering a culture where calls for greater judicial accountability are viewed with scepticism and suspicion.
Nonetheless, such concerns must not become impediments in the way of greater transparency. We must not become prisoners of our past and inward-looking in our approach. Appointments to the superior judiciary should reflect the principles that form the bedrock of our democratic dispensation.
Most importantly perhaps, our judiciary may remember that judicial independence can be guarded — not by creating the hegemony of one institution over others — but by affording everyone, especially judges themselves, certain procedural safeguards.
Until such safeguards are in place, transparency in appointments and judicial independence both continue to hang in the balance.
The writer is a lawyer.
Published in Dawn, April 21st, 2019