THE nineteenth amendment to the constitution, passed by the National Assembly and the Senate, is an attempt to remove some deficiencies in the new mode for appointments in the superior judiciary, earlier introduced vide the eighteenth amendment, in the light of the Supreme Court order dated October 21, 2010. The important question is in what way the new method for inductions in the upper judiciary is better than the old one.

Prior to the passage of the 18th amendment, Article 177 of the constitution provided that a judge of the Supreme Court would be appointed by the president after “consultation” with the Chief Justice of Pakistan (CJP). The text of Article 177 itself did not provide that the consultation was binding on the president, which meant that going by the text alone he was 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 was required was to discuss the matter of appointment with the CJP.

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 in its famous judgment held that “the consultation should be effective, meaningful, purposive, consensusoriented, 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.

One may not agree 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 was 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.

Notwithstanding the apex court’s judgment, the matter of appointment of the judges of the Supreme Court and high court remained controversial and at times a cause of tension between the executive and the judiciary. The Charter of Democracy concluded by former Prime Ministers Benazir Bhutto and Nawaz Sharif in May 2006, while both in exile, provided for the constitution of a judicial commission for appointments in the superior judiciary subject to approval by a parliamentary committee. The present government and its allies addressed the issue in the eighteenth amendment — the most comprehensive amendment to the constitution to date.

Accordingly, Article 175A incorporated into the constitution by the eighteenth amendment established a Judicial Commission for inductions in the superior judiciary. For the appointment of a Supreme Court judge, the commission is headed by the CJP and comprises two senior most apex court judges, the federal law minister, the attorney general of Pakistan (AGP) and a senior lawyer to be nominated by the Pakistan Bar Council. The commission by a majority decision shall send nominations, one against each vacancy, to a Parliamentary Committee (PC) consisting of four members each from treasury and opposition benches. The eight members are divided equally between the Senate and the National Assembly. The PC can reject a nomination by a three-fourth majority within two weeks failing which the same shall be deemed to have been confirmed by it and will be sent to the president for appointment.

The eighteenth amendment also provided (vide para 3 of Article 175A) that the president shall appoint the senior most judge of the Supreme Court to the office of the CJP thus formally recognising the principle of seniority and legitimate expectancy enunciated by the apex court in the Al-Jihad case and subsequently reiterated in some other cases.

Article 175A was challenged in the Supreme Court and some systemic issues were raised. It was contended, inter alia, that there was a basic character of the constitution; that the independence of the judiciary was part of the basic character; that Article 175A was violative of judicial independence; and that the courts were empowered to look into the vires of a constitutional amendment and even invalidate it. In particular, it was argued that parliament in the form of the PC was empowered to veto the nominations made by the Judicial Commission and that the law minister and the AJP, who represented the executive, were made members of the commission and given votes equal to its judicial members including the CJP.

It was also argued that the PC would also discuss conduct of high court Judges while scrutinising their proposed elevation to the apex court. This would, it was argued, be at variance with Article 68 of the constitution, which bars parliament from discussing the conduct of the members of the superior judiciary. It was also pointed out that the process of judicial appointments might come to a halt in the event of the dissolution of the National Assembly as in such a situation the composition of the PC would be incomplete.

The petitions were heard at a time of high tension between the judiciary and the executive and it was apprehended that in case the Supreme Court struck down Article 175A, the tension would escalate enormously.

The Supreme Court order of October 21 chose a middle path and asked parliament to reconsider Article 175A pending which the appointments would be made as per the new method. The court did not delve into the above mentioned systemic issues and adjourned the petitions until the end of January 2011. The nineteenth amendment gives effect to the apex court observations. One, the number of the judicial members of the commission has been raised to four from two (excluding the CJP). Two, in case the PC rejects a commission nominee, it shall give reasons for the same to the latter through the prime minister. Three, the meetings of the PC shall be held in camera, where it may discuss the conduct of superior court judges. Finally, in the event of the dissolution of the National Assembly, the PC shall comprise the members drawn from the Senate only.

The most significant change made by Article 175A is to take the power of inductions in the superior judiciary from the CJP and give it to the Judicial Commission subject to parliamentary approval. The commission comprises members from the bench, executive and the bar with the judicial members now having a clear majority under the nineteenth amendment. While the previous method was in vogue, the CJP did consult other apex court judges while recommending judicial appointments to the president. However, the consultation process was informal and lacked transparency. The new method is far more transparent and the nomination forum broad-based with each member including the CJP having one vote. Though the executive is represented in the commission, it has only two votes compared with five votes from the judiciary and one from the lawyers.

However, the question arises that with such composition and transparency, why does the commission need parliamentary oversight? Yes, in countries like the United States (US), the judicial appointments are subject to Congress confirmation and the idea of a parliamentary committee may have been borrowed from there. However, this analogy may not be correct for the reason that US has presidential form of government, where the key appointments made by the executive (read the president) have to be confirmed by Congress.

In contrast, Pakistan has parliamentary system where key appointments are not subject to parliamentary approval. No parliamentary confirmation, for example, is needed for the appointment of ministers, the State Bank of Pakistan governor, the chairman of the Federal Public Service Commission, or the AGP. Then why should judicial appointments be subject to parliamentary confirmation? If the purpose was to ensure checks and balances, the same can be done through the Judicial Commission. It seems that the authors of the eighteenth amendment have pushed the principle of checks and balances in the appointment of judges too far. hussainhzaidi@gmail.com