SC appointments

ARTICLE: Judiciary, in Pakistan and elsewhere, has become from being the least potent branch to the most potent branch over the years. Judicial power, with the charter of rights placed in the constitutions and growth of judicial review, has vastly expanded. The inter-branch conflicts and civil-military relations in the context of Pakistan have also brought judiciary to the fore. A fight over the turf.

Pakistan's judiciary after the historic lawyers' movement of 2009 has asserted its power. Suo motu jurisdiction, carved out of the original jurisdiction of the Supreme Court meant for enforcement of fundamental rights has unwittingly intruded upon the policy domain reserved by the Constitution for other branches of the Government. Examples are not lacking. The Supreme Court acts as a constitutional court. Enforcement of fundamental rights and its advisory jurisdiction in matters relating to disputes amongst the provinces and federation confer immense power. The appellate jurisdiction with huge pendency of petitions and appeals leave little time for the justices to reflect on the larger constitutional issues and develop judicial philosophy. The result is short and impatient hearings and inordinate delays in judgements. Judicial over-reach and selection of Supreme Court justices are the possible reasons for this less than satisfactory situation.

There is no culture of law journals. Criticism of judgements is taken as a personal attack on judges. It obviates freedom of speech by the Court like other branches of the Government. Constitutional jurisprudence of the last one decade has huge volume but lacks content and substance with fewer exceptions. The highest Court of the land and its justices are the role models for the society. Wise men. A Marshall, Denning, Dixon are missing though. People still fondly remember A.R. Cornelius, Hamood-ur-Rehman and Shafiur Rehman for their judicial brilliance. From 2013 to 2019, seven chief justices and several Supreme Court judges retired. People hardly remember them. There is no academic tradition of writing about the lives of judges. A half page introduction in a law report. In other countries there is no dearth of literature of judges. One or two books on legal and judicial history of Pakistan are available. Very few autobiographies.

A Federal Court was established under Government of India Act, 1935 in 1939. Its first Chief Justice was Sir Mauris Gawyer. M.A. Jinnah never appeared before Gawyer as he had reservations against him. Sir Zafarullah Khan and Sir Shah Suleman adorned that Court. Judgements of the Court are a treat for lawyers for their clarity and intellectual depth. Judges of the Federal Court were appointed by the Executive. After partition, India framed its constitution in 1949. Pakistan struggled with constitution making process. Official history and judgments of Federal Court (Moulvi Tamizuddin and Federal Reference 1 of 1955) blame politicians which is only a half truth. Federal Court of Pakistan was established in 1949. It functioned till March 1956 when the first Constitution of Pakistan came into force and a Supreme Court was established with the same judges. The procedure of appointments of judges of the Supreme Court under Article 149 of the new Constitution was based on the provisions of the Indian Constitution. It had a short life. The Constitution of 1962 kept the old scheme for Supreme Court appointments under Article 50. India started making direct appointments to the Supreme Court from the Bar. A K. Sikri's was the first appointment. Many thereafter. The Constitution of Pakistan 1973 provided for the appointment of judges of the Supreme Court by the Executive (President) after consultation with the Chief justice. The case of Advocates on Record (1994) wholly changed the procedure of appointments. The Supreme Court of Pakistan followed suit. In the Al-Jihad Case (1996), Indian view was followed. Dubious appointments were made in different High Courts by the then Government in 1994-95 which shocked legal fraternity. The pendulum has swung to the other extreme. Judiciary virtually took this power from the Executive and arrogated to itself by a judicial interpretation both in Pakistan and India. Any attempt to undo this shift of power was met with a judicial resistance. From 1996 to 1999 (1999-2004 excluded) and from 2004 to 2010 virtually all appointments to the Supreme Court were made solely on the advice of the Chief Justice of Pakistan. In 2010, a Judicial Commission was introduced under Article 175 A which provided for a two steps appointments system. A power that was originally vested in the Executive was given to a Judicial Commission to the extent of nominations. A Parliamentary Committee was created under Article 175 A (8) for confirmation of the nominations of the Judicial Commission. Again, by a judicial order, powers of the Parliamentary Committee were almost nullified. 19th constitutional amendment was adopted under a judicial order. This was done in the name of independence of the judiciary. The Chief Justice of Pakistan is the sole nominator for Supreme Court. He nominates and then heads the judicial commission. He nominates a single name and then gets it approved. His nomination has even been turned down. All nominations are made from sitting and retired judges of the High Court- often ignoring seniority.

Few provisions in the Constitution have never been enforced. Article 177 (2) (a) provides that advocates with 15 years High Court practice are qualified to be appointed as a judge of the Supreme Court. Since 1947 not a single direct appointment to Supreme Court has been made. An appointment to the Supreme Court was made last year purportedly in pursuance of that clause as the said judge lacked 5 years' experience requirement as a High Court judge. It would have been better if more than one name from the Bar were considered. Some of the recent appointments the Supreme Court have been made ignoring seniority amongst High Court judges. The ultimate power to determine the legality vests in the Supreme Court, obviously the Government and Parliamentary Committee did not oppose. The Bar leadership is unwilling to question this practice and claim its constitutional right lest their vested interest and prestige are compromised. According to the Supreme Court's own view of (2004) it is a fresh appointment. Judges of the High Court and advocates have then an equal right.

An independent judiciary is the guarantor of rights, justice and rule of law. Justice system of a state is the ultimate assurance of peace and prosperity. Institutions are respected when appointments are made on merit. When powers are exercised as a trust. The weakest moment comes when this sacred power is surrendered to circumstances, relationships and trust is breached. The ultimate sufferers are the consumers of justice, the people. The balance can be brought back if the Executive proposes names, the judicial Commission nominates, and the Parliamentary Committee confirms that nomination.

Copyright Business Recorder, 2020