Appointment of judges: Senate panel unanimously passes bill to amend Article 175A

ISLAMABAD: The Senate Standing Committee on Law and Justice on Thursday unanimously passed a bill seeking a constitutional amendment to Article 175A of the Constitution, which deals with the appointment of judges to the Supreme Court (SC), high courts, and the Federal Shariat Court.

The meeting which was held under the chairmanship of Senator Syed Ali Zafer had a detailed discussion over the Constitutional Amendment Bill 2022 substitution of article 175A of the constitution moved by Pakistan Peoples Party (PPP) Senator Farooq Hamid Naek, and passed it.

Senator Barrister Ali Zafar said that without the independence of the judiciary no nation can progress or a society function and no state can survive. “Transparency and security in the process of appointing judges as well as their removal are mandatory for the independence of the judiciary,” he said.

He said that previously there was an unofficial process of consultation between the executive and the concerned chief justices through which the judges were appointed but through the 18th and 19th amendments, a more transparent process was introduced in which the judges were appointed in stage one by a Judicial Commission and then as a second stage by a parliamentary committee.

Zafar pointed out that through a judgement of the Supreme Court, the powers of the parliamentary committee were taken away and it was left without any jurisdiction to deny the nominations made by the Judicial Commission, and hence, the parliamentary committee became a toothless body.

The parliamentary body chairman further said that the recent meeting of the judicial commission also showed that there was a need to maintain a balance so that in the matter of appointment of judges, the decision could be made in a more transparent and structured manner.

Regarding the amendments, he pointed out that there were three potential areas. First, the composition of the judicial commission has been changed so that instead of five judges being part of the Judicial Committee there would now be four judges, including the chief justice of Pakistan, while the remaining three would be represented by the law minister, attorney general of Pakistan and a representative from the Pakistan Bar Council (PBC). In this manner, the majority of the Judicial Commission will still remain with the judges but the Judicial Committee would also have an equal say in the process, he said.

He said that the second part related to re-empowering the parliamentary committee and it was decided that the parliamentary committee may accept or reject the nominations and that its decision shall not be subject to challenge in the Supreme Court or a High Court. In this manner, there would be a two-layered process to ensure that the best person is appointed as a judge of the supreme judiciary, he said.

He said that the amendment also proposed that there would be an Initiation Committee which would nominate the judges of the High Courts for consideration by the Judicial Committee and the Parliamentary Committee. It may be mentioned that previously there was no Initiation Committee and the nomination for the appointment of High Court judges was made by the Chief Justice of Pakistan, he said.

Zafar opposed this Initiation Committee by stating that the matter of nomination should be left to the discretion of the chief justice of Pakistan and the relevant judges of the High Courts because their nominations can be considered or rejected first by the Judicial Committee and then by the Parliamentary Committee and there was no need to add a third-tier which would only complicate the matter.

Barrister Ali Zafar also pointed out that having representation by the Law Minister, Attorney General of Pakistan and PBC at the stage of nomination would also lead to more conflict and confrontation. The amendment also suggested that decisions of the Initiation Committee, Judicial Commission and Parliamentary Committee must be made within a fixed timeframe.

Naek said that the bill is neither related to him nor his family but he moved it for Pakistan. He said that his bill also has nothing to do with judicial commission’s meeting held in the recent past. He had tabled this bill some six months ago, he said.

He said that the amendments being proposed to Article 175A are "primarily related to the role and functioning, especially the timeframe available to the parliamentary committee”. The only new thing being recommended is “Initiation Committees” for the initiation of nomination(s) for the appointment of judges of the high courts.

According to the statement of object and reasons, Naek stated that pursuant to the 18th Constitutional Amendment, appointments in the superior courts are processed through two forums: Judicial Commission (JC) and Parliamentary Committee (PC).

The senator said that the role of the parliamentary committee, which was carved out cautiously by the drafters of the 18th Constitutional Amendment, assigned only 14 days’ timeframe to it to confirm or not a nomination by a three-fourth majority of its total membership, failing which the nomination shall be deemed to have been confirmed.

Naek said that the parliamentary committee’s role was further eroded by the changes enacted through the 19th Constitutional Amendment and the judgments of the superior courts in various cases overturning the decisions of the Parliamentary Committee.

He said that the parliamentary committee members across the party lines had apprehensions that the role of the committee and its members has been marginalized to the extent of elimination and the committee has become a mere “post office”. Voices from different segments of the society, most important and relevant ones from the PBC and different bar associations were echoing the same concerns.

The committee also approved the bill relating to the publication of laws.

Chairman National Accountability Bureau (NAB) Aftab Sultan briefed the committee about a public petition in which the claimants of Eden Estate had demanded compensation for the non-availability of plots in the society.

He told the committee that the owners of Eden have entered into a plea bargain of Rs16 billion and all the claimants shall be satisfied, including the ones who have filed the petition. The payment will be made in three years on a pro rata basis, he said.

Senator Rana Maqbool Ahmad, Azam Khan Swati, Munzoor Ahmad Kakar, Shibli Faraz, and Minister for Law and Justice Azam Nazeer Tarar also attended the meeting.

Copyright Business Recorder, 2022