The ability to appoint judges is perhaps the most enduring power one can possess, as a judge will interpret the law for decades, while a politican’s career can be far shorter. The US constitution seems to politicise the appointment process by allowing the President and Congress to unilaterally select judges without consulting the judicial branch. In Pakistan, the Supreme Court has indicated that the Chief Justice should have ultimate powers to appoint judges, which could be problematic as vesting this power in the Chief Justice increases opaqueness in the decision-making process. The judicial appointment process should utilise a transparent apolitical system that appoints judges based solely on merit, much like in South Africa.

The judicial appointment process in Pakistan has been undergoing major developments over the past few years, with the Supreme Court actively engaged in its progress. At the provincial level, the Supreme Court recently upheld a decision by the Sindh High Court to invalidate an ordinance passed by the provincial government to exclude the judiciary from choosing judges for the High Court. In 2008, Sindh’s government transferred the appointment power from the ‘provincial selection board,’ composed of high court judges, to the Public Service Commission, an Executive body.

Justice Jawwad S. Khwaja of the Supreme Court affirmed the Sindh High Court’s rejection of this plan, citing to the 18th Amendment case which drew an “inextricable link” between judicial independence and the ability to appoint judges. Pakistan’s Constitution guarantees judicial independence from the other branches of government, and in the 1996 Al Jehad case, the Supreme Court interpreted this to solidify the primacy of the Chief Justice in the appointment process.

However, the 18th Amendment changed article 175 and 177 to allow the president to rely on the nominations of a Judicial Commission, rather than the Chief Justice alone. The Judicial Commission is to be composed of the Chief Justice, two most senior members of the Supreme Court, Federal Minister for Law and Justice, Attorney General for Pakistan, and a senior advocate for the Supreme Court. The Supreme Court objected to two parts of the amendment, i.) that members of the executive branch were included in the Commission which diluted the power of the Chief Justice and ii.) that a Parliamentary Committee could reject the recommendations of the Judicial Commission.

The Court ordered that Parliament re-examine the creation of Article 175A and allow the Judicial Commission the right to override a veto by the Parliamentary Committee. Following the Court’s decision, the 19th Amendment was passed to address some of the Court’s requests by including two additional Supreme Court judges to the Judicial Commission. However, the 19th Amendment affirmed the right of the Parliamentary Committee to veto the recommendations of the Judicial Commission, as long as it gave a reason for its veto.

While many could claim that the Supreme Court was being overzealous in protecting its power to control judicial appointments, there is a genuine fear of politicising this important process.  Unlike politicians and bureaucrats, who will favor judicial nominees based on their connections or party affiliations, judges could be more impartial in choosing future members of their legal fraternity. Further, judges have a better understanding of the temperament required to handle judicial demands, and can thereby choose a more meritorious candidate.

However, there is also a bias associated with judges to appoint like-minded lawyers to the bench.  This bias is facilitated by the opaqueness of allowing the Chief Justice alone to control the appointment process. Few nations in the world recognise the unilateral ability of the Chief Justice to control the appointment process alongside the President, like the Pakistani Supreme Court. In India, the three Judges’ cases trace a development of the appointment process away from allotting sole power to the Chief Justice. While the Chief Justice was formerly given ultimate power to control judicial appointments, the final judgment required the Chief Justice to share this power with two other judges from the Supreme Court.

These changes were an attempt to democratise the process of judicial appointment and make it more transparent, which is the reason why the US has adopted a political system of appointment. In the US, a judicial nominee to the federal courts or Supreme Court must go through two steps: nomination by the President and confirmation by the Senate. The President has substantive control over the nomination process, but oftentimes, nominations are not based on judicial merit but on political ideology. Judicial appointments become the ghosts of past administrations that linger on long after their exit from the White House, as liberal Presidents pick liberal judges and vice versa.

The Pakistani and Indian Supreme Courts would likely rebuke such an attempt to politicise the judicial appointment process. However, while US Presidents can unilaterally nominate judges, those nominations become matters of “public notoriety” as James Madison pointed out, and “the blame of a bad nomination would fall upon the President singly and absolutely.” Therefore, though the President’s decision can be based on political ideology, his feet are held to the fire of public criticism, along with his party, if he makes a nepotistic nomination.

There is a further politicisation of the appointment process as the Senate must confirm the President’s nomination. Most of the time, the Senate confirms the president’s choice and has little substantive control over the nominees. However, the compliance of the Senate is not based on the merit of the nominee, but on the popularity of the President’s political party in Congress.  Therefore, meritorious nominees for the Supreme Court have been denied a seat on the bench based purely on the Senate’s political enmity with the President. Yet, James Hamilton argued that Senate confirmation “is a check on the self-interest and impulsiveness of the President,” as it prohibits the President from granting appointments as favors to individuals who were either unworthy or radical candidates.

There are issues with both the American model and the method of judicial appointment advocated by Pakistan’s Supreme Court. By allowing the Chief Justice to exclusive consult with the President, the appointment process can become undemocratically opaque. By allowing the judiciary to be silenced in the appointment process by Parliament all together, the process becomes politicised and improperly managed.

However, the South Africans present an alternative process which addresses many of the critiques of the American and Pakistani models. In South Africa, the appointment process begins with a Judicial Service Commission composed of the Chief Justice, two practicing attorneys, one professor of law, six members of the National Assembly, six members of the Provincial Assembly, and four members designated by the President amongst others. This group of individuals can recommend three nominees for each position, and the President must appoint an individual from that list.

This cooperative model brings together members of Parliament, the judiciary, the executive, and academia in the nomination of a judge to find the most meritorious apolitical candidate. Rather than attempting to vest all powers in one institution, a model of judicial appointment which embodies the democratic process, while including the legal community and the Chief Justice, will best serve a nation’s judicial system. Therefore, Pakistan’s Supreme Court and Parliament should reconsider their tit-for-tat exchange on the judicial appointment system in favor of a cooperative process that includes the wisdom of the Court and the transparency of the Parliament.

 


The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.


The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group

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