The retirement last year of the Country’s 21st Chief Justice, Justice Tassaduq Hussain Jillani, after just seven months in office, and the appointment of the current Chief Justice of Pakistan, Justice Nasir-ul-Mulk, for just thirteen months forces one to consider if there should be some other criteria and basis for determining the term of office of the country’s top judge.
The appointment of the Chief Justice of Pakistan is based on the seniority principle established by the Supreme Court of Pakistan in the ‘Judges’ Case’ of 1996 and subsequently enshrined in the Constitution of Pakistan by the 18th amendment to the Constitution. Article 175-A of the Constitution states that the President shall appoint the senior most judge of the Supreme Court as the Chief Justice of Pakistan.
One must assume that this principle aims to ensure that there is no political favouritism in the appointment of the head of the country’s judiciary and that the judges of the Supreme Court can give decisions without fear of being superseded by juniors and without incentive for giving pro Government decisions. This by no means implies that the current members of the superior court are susceptible to such fear or incentive; rather far from it. But whether we should create (or rather return to) a system that gives impetus to such possibilities is another matter.
Based on the seniority principle and provided that all things remain equal, Justice Nasir-ul-Mulk’s successor will be Justice Jawwad S Khawaja and he will hold office for merely three weeks. Whether the system should allow respected learned judges like Chief Justice (r) Tassaduq Hussain Jillani, Chief Justice Nasir-ul-Mulk and Justice Jawwad S Khawaja to have a longer term of office is a matter that requires serious consideration by policy makers.
We often hear that Pakistan needs strong institutions instead of personality based cults. One could argue that judicial institution building requires a leader to remain in office for a reasonable (read: not too short and never too lengthy) period of time to ensure implementation and continuity of judicial policies. Pakistan Army is widely considered to be the most organized and disciplined institution in the country – imagine if the Chief of Army Staff was to be replaced every few months (or stay in office for seven years)!
One option in this respect that can be considered is that the seniority principle should continue to be followed but the senior most judge appointed to the post should then hold office for a fixed term of three years. Apparently, this option was tabled in some form before the committee tasked with the finalization of the eighteenth amendment to the constitution but was not considered further due to lack of support from a certain political quarters as it would have cut short Chief Justice (r) Iftikhar M Chaudhry’s stay at the helm of affairs.
If this option was implemented it would perhaps not be favourable to some judges but most likely it would be better for the judiciary as an institution. The judges personally might be impacted by a fixed term for the Chief Justice of Pakistan in a number of ways. The judge who would have remained CJP for seven years like Justice Iftikhar M Chaudhry would be required to leave office after three years. The judge who would have assumed the top office upon an incumbent CJP reaching his constitutional retirement age of 65 might not get that opportunity because he might retire before the incumbent CJP completes the proposed three year fixed term of office. Obviously, many aspects of this proposal will eventually require constitutional amendments in order to be implemented.
Some learned friends in the media have also suggested that perhaps appointments to this top judicial office should be made on merit and qualification and seniority alone should not be the definitive criteria. I beg to differ. Scrutiny of superior court judges should take place prior to their appointment to the bench and it should be safe to assume that all judges of the Supreme Court (especially those who have previously served as judges of the high courts) have the requisite experience, qualification and integrity to dispense justice to the 185 million people of this country.
If one was to propose appointment of the Chief Justice of Pakistan based on criteria other than seniority, we would be faced with many daunting questions. For example, whether such appointment criteria would include the individual judge’s case disposal rate, previous judicial management experience or ‘reputation’? The reliance on case disposal rate might lead to miscarriages of justice if judges feel the need to stay on top of the case disposal race.
The requirement for previous judicial management experience might be good for former Chief Justices of the High Courts but would trump those judges who never held such position or those who were appointed directly from the bar as judges of the Supreme Court (legally possibly but very rarely done). In relation to the reputation criteria, who will sit judgment on the judges?
On the other hand, if one was to give the power to appoint the Chief Justice of Pakistan to the Judicial Commission based on defined criteria, what happens if there is a deadlock? Would it be prudent to put senior judges of the apex court through parliamentary (and in a way media) scrutiny – will the judges considered for but not appointed to the coveted post lose (moral) authority to continue as apex court judges and would some even consider taking premature retirement!? The answers to the above questions would suggest that the judiciary (and hence the nation) will stand to lose if the seniority principle was taken away in Pakistan’s current political and democratic landscape.
Accordingly, if the seniority principle is to be maintained but continuity of judicial policies and judicial institution building is also important then the option to introduce a fixed term for the Chief Justice of Pakistan appears to be a reasonable proposition that should be considered and debated by the policy makers.
The writer is a partner at an international law firm and former Executive Director of the Research Society of International Law Pakistan. Twitter: taimur_malik. This article was originally published in Pakistan Today.