The quest for an independent judiciary: progress and pitfalls

Since Pakistan’s independence in 1947, the country has struggled to establish clear and objective criteria for appointing judges to its High Courts, Supreme Court, (and the Federal Shariat Court).

Expectations were high that with Qazi Faez Isa, a proponent of amending Rule 3 of the Judicial Commission of Pakistan, these criteria would be revised to foster transparency and uphold justice.

However, these amendments have yet to be implemented, highlighting a significant gap in Pakistan’s judicial appointment process and impeding the development of a more accountable and democratic judicial system.

Historically, during the British Raj, the judicial appointment process evolved significantly. Initially, judges were appointed by the Crown and served at its pleasure, with appointments based on a mix of professional qualifications and experience in legal practice or civil service.

The Regulating Act of 1773 and subsequent reforms further defined the qualifications and appointment processes for judges in India, which later influenced judicial practices in Pakistan.

After independence, the 1956 and 1962 Constitutions of Pakistan designated the President as the primary authority for judicial appointments, requiring consultations with the Chief Justice for appointing Supreme Court judges.

Judges were to be Pakistani citizens with substantial experience either as High Court judges or advocates. Despite these provisions, the process remained heavily influenced by the President, with additional oversight mechanisms introduced over time, such as the Supreme Judicial Council to address judicial misbehavior or incapacity.

Overall, the judicial appointment system has evolved from colonial roots into a complex structure under Pakistani governance, yet it still faces significant challenges in achieving the independence and objectivity expected in a modern judiciary.

The 1973 Constitution of Pakistan did not significantly alter the criteria for the appointment of judges, maintaining qualifications similar to those outlined in the previous constitutions.

Notably, Article 177 allowed for the appointment of a Chief Justice and other Supreme Court judges without adhering to a principle of seniority, and even permitted the appointment of retired judges or advocates who had never served on a High Court bench.

Prior to the 18th Amendment, the appointment of judges in Pakistan was significantly influenced by the prevailing political powers. From independence in 1947 until the rise of Ayub Khan in 1958, the country was dominated by a civil bureaucracy born out of the British Raj. This bureaucracy viewed the populace as subjects (Riaayaa) and carried forward a colonial mindset, influencing judicial appointments to reflect their own hegemony.

Post-1958, Ayub Khan, often regarded as a representative of neo-colonial interests, continued this trend, with power concentrated in the hands of military and non-civil entities.

During this era and the subsequent military rule until December 1971, judges were appointed who aligned with these forces, often supporting even unconstitutional regimes.

The civilian rule under Zulfikar Ali Bhutto (ZAB) saw no significant deviation from this pattern. The practice of out-of-turn judicial appointments that benefited the ruling elite persisted, undermining the independence of the judiciary.

This trend was exacerbated during the regime of dictator Zia-ul-Haq, who manipulated all aspects of governance, including the judiciary, to serve interests contrary to those of the populace.

Historically, judicial appointments in Pakistan have often been influenced by those wielding power outside the traditional confines of the rule of law, sometimes described metaphorically as the “law of the jungle.”

This implies that appointments were frequently made based on recommendations from powerful, non-judicial actors whose influence extended beyond legal and constitutional frameworks. The result was a judiciary shaped more by external pressures and less by the merits of judicial candidates or the needs of the justice system.

Regrettably, subsequent civilian governments led by Benazir Bhutto and Nawaz Sharif did not alter these practices. They continued to exert control over the judiciary, using it to advance personal and political agendas.

This manipulation was carried out blatantly, reflecting a continuation of the undemocratic practices initiated by previous military rulers, thereby maintaining a cycle of influence and control over the judiciary that has persisted throughout Pakistan’s history.

The Al-Jihad Trust case, also known as the judges’ judgment, theoretically empowered the Chief Justice, making his recommendations more influential in the President’s decision-making process. Yet, this change was more nominal than practical. Both the Chief Justices and the Presidents have historically not been entirely independent, nor have they consistently upheld high moral standards, often yielding to external pressures.

These pressures came from a broad spectrum of influences, extending beyond the core establishment, which continued to shape the judiciary’s role and effectiveness subtly.

This scenario underlines the complexity of judicial independence in Pakistan, where theoretical gains in autonomy often do not translate into actual independence or immunity from external influences.

The legal fraternity, often perceived as lacking a deep understanding of the constitution and law, believed that the Al-Jihad Trust case significantly altered the dynamics of judicial appointments in Pakistan, particularly emphasizing the role of the Chief Justice.

However, in reality, this case merely shifted the balance of power between two agents of the real establishment, without leading to substantial or fundamental changes.

Post-18th Amendment, there remains skepticism about the degree of change in the appointment process. Observers note that even till the tenure of figures such as General Bajwa, judicial appointments seemed to be influenced by the same extrajudicial forces that had historically manipulated these decisions.

This continuity suggests that despite legislative reforms, the practice of prioritizing personal and familial interests over constitutional mandates and the broader public good persists among some political figures.

Such practices compromise the integrity of judicial appointments, reinforcing the perception that the judiciary is not wholly free from the influences of those with power and personal agendas.

The 18th Amendment, passed in 2010, was heralded as a step towards restoring institutional equilibrium by diluting the judiciary’s previously unchallenged powers in the judicial appointments process. However, this reform has not fundamentally changed the influence of external forces—those wielding power beyond the rule of law—on the appointment of judges.

The amendments aimed to rectify this by involving both the Judicial Commission of Pakistan (JCP) and a Parliamentary Committee (PC) in the appointments process.

Yet, despite these structural changes, appointments continued to be swayed by external pressures, revealing the persistent influence of these forces. The JCP, led by the Chief Justice and including senior judges and legal officials, nominates judges, which are then confirmed by the PC before being finalized by the President.

Although this process was designed to democratize appointments and incorporate checks and balances, the reality has often not lived up to its promise. The influence of external powers, including military and political leaders who prioritize personal and familial interests over constitutional mandates, continues to cast a shadow over the judiciary’s independence.

The original Article 175A, introduced by the 18th Amendment, aimed to balance the powers between the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee (PC).

However, under the influence of the then Chief Justice of Pakistan, this balance shifted significantly through the 19th Amendment. The amendment increased the number of judges in the JCP, effectively strengthening the judiciary’s influence while concurrently diminishing the powers of the PC.

This restructured power dynamic was vividly demonstrated in cases such as the Munir Hussain Bhatti case of 2011, where the Supreme Court forcefully reasserted its dominance over the PC, advocating that the judiciary should maintain ultimate control over judicial appointments.

This stance was solidified by the Court’s interpretation of the 18th Amendment, wherein it suggested that it possessed the authority to invalidate constitutional amendments that did not conform to its interpretation of judicial independence and constitutional mandates. This development marked a significant consolidation of judicial power, impacting the balance of authority intended by the 18th Amendment.

Thus, despite the formal changes brought about by the 18th Amendment, the fundamental issues affecting judicial independence in Pakistan—namely, the outsized influence of non-constitutional powers—remain a significant challenge.

The judiciary’s independence continues to be compromised by the very forces it seeks to be protected from, underscoring the need for further reforms that genuinely insulate judicial appointments from external influences.

In 2022, a constitutional petition was filed under Article 184(3) of the constitution, naming the Judicial Commission of Pakistan as the respondent and requesting an amendment to Rule 3 of the Judicial Commission of Pakistan. However, the petition was returned by the registrar, who deemed it personal in nature.

Although it was possible to challenge this decision through an in-chamber appeal, such action was deemed futile during the tenure of Bandial.

Consequently, letters were sent to the Judicial Commission of Pakistan informing them of the filing and rejection of the petition and requesting their intervention. Yet, no action was taken.

As the leadership transition in the Supreme Court approached, further letters were directed to both the outgoing and incoming Chief Justices. Additionally, articles and videos were published in newspapers and posted on social media, advocating for the amendment of Rule 3 by the new Chief Justice, who had previously supported such changes.

Despite these efforts, only a committee was established under a distinguished Justice of the Supreme Court. As of December 29th, the draft amendments, which could have been finalized within three to four weeks, have yet to be approved and sanctioned by the Judicial Commission of Pakistan.

The question then arises: What prevents the Chief Justice of Pakistan, who also serves as the chairman of the Judicial Commission of Pakistan, and the other members of the Judicial Commission from amending Rule 3 to establish objective, rule-based, and pro-people criteria for the appointment of judges?

Copyright Business Recorder, 2024