Transparency In Judicial Appointments
“Quis custodiet ipsos custodies?”
This is a satirical query posed by poet-philosopher Juvenal in Ancient Rome which literally means, “Who will guard the guards? ”
In our jurisprudence, the superior court judiciary acts as conscious keeper of the Constitution and ultimate protector of the rights of citizens and society at large. The law in the Supreme Court’s own words is,
“Be it enacted or customary, is what the courts interpret and finally enforce.”
So with this backdrop, with the superior court being the final arbiter of all disputes and the court of last resort, it has now become even more important to have the most eligible person for the job. For a constitutional appointment where security of tenure is an absolute pre-condition for the independence of judiciary, the only main check is at the initial appointment. The appointment to any public office is a sacred trust in which the process must be above board, devoid of even the slightest taint of favouritism.
The process for appointment of superior court judges is provided in Article 175-A of the Constitution. It is a two-stage appointment process where there is the all powerful Judicial Commission and a Parliamentary Committee. The process requires an independent assessment of all nominees at both stages. The Judicial Commission comprises of thirteen members, including eight honourable judges and the Parliamentary Committee consists of eight members, selected from both Houses of the Parliament. The new process introduced through the Eighteenth Amendment in 2010 was a departure from the past practice where the Chief Justice had the final say in the appointment of judges. The new process was envisaged to bring transparency by involving the collective wisdom of two high powered bodies. However, soon thereafter, Article 175-A came up for judicial interpretation before the honourable Supreme Court in Munir Bhatti’s case (Munir Hussain Bhatti v Federation of Pakistan PLD 2011 SC 407) when the recommendations of the Judicial Commission had not been confirmed by the Parliamentary Committee. The Supreme Court in the said case held that the Parliamentary Committee could not question the caliber, legal acumen, judicial skill and quality of the nominee if the nominee had been approved by the Judicial Commission. The court further observed the following:
“We are thus unable to see the technical expertise, judged by a (Judicial) Commission comprising of people having spent decades in the legal filed, could be better judged, or worse, reversed by the Parliamentary Committee. If this was intended by the legislature then there was simply no need to even constitute Judicial Commission.”
Since the Munir Bhatti case, the Judicial Commission has the final authority for the most part while the role of the Parliamentary Committee has been greatly reduced and become superfluous. Some may even argue now that we have gone to the past practice of ‘judges appointing judges’.
With the present process, especially in the appointment of High Court judges, the most important role is that of the respective Chief Justice of the province. As per Section 3 (2) of the Judicial Commission of Pakistan Rules, 2010 it is only the respective Chief Justice of the province who can initiate the names of candidates for consideration by the Judicial Commission. It is interesting to observe that there are no guidelines (at least in the public domain) as to how the respective Chief Justice will shortlist lawyers, except for the constitutional requirement of the nominee being more than forty five years of age and having 10 years standing as an Advocate of the High Court. There is no way the general public can ascertain or assess the reasons that may have motivated the Chief Justice of a particular province to select a particular name. This initial and crucial step in the judicial appointment process leaves a lot of unfettered discretion as to who will even be considered for selection. In the current process, even when a candidate is shortlisted, let alone appointed, the public has no way to find out why a particular candidate has been chosen over the other. Time and again it has been held by our superior courts that the concept of absolute, unfettered or unguided discretion by public authorities is to be treated as alien to the essence of the rule of law. At this stage, it imperative to introduce publicly known guidelines for the shortlisting of a particular candidate over the other, for instance, the number of reported judgments or years of standing before the Supreme Court, etc. so that the discretion is structured and the process becomes fairer.
Also, when a shortlisted candidate has been selected or rejected by the Judicial Commission, the general public or even the legal fraternity cannot find out the reasoning for such decisions as the proceedings are in camera and the minutes are never made public. Thus, the Judicial Commission can further increase the confidence of the masses by at least disclosing the minutes and especially the dissenting comments of the members of the Commission (if any).
Every time – and this is without exception even when judges are appointed – there is surprise and resentment over certain names from both the bar and the general public due to a lack of transparency in the system. The process might be absolutely fair and unexceptional but it is shrouded in secrecy. It goes without saying that an independent judiciary is the bedrock for all civilized societies. Confidence of the public in our judicial system will be further strengthened if the appointment process becomes more transparent and inclusive.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.