Monday, June 27, 2011

Process of Appointment of Superior Judiciary in Pakistan Part II

By Zeeshan Zafar Hashmi

The primary argument against the procedure of appointment of the superior judiciary as laid out in the Al-Jehad Trust case was that it placed too much power in the hands of the Chief Justice of Pakistan. Since the consultation of the Chief Justice was considered as binding, it was thought that this increased the chances of a Chief Justice exercising his power to appoint judges arbitrarily rather than having accord to qualifications such as seniority.

Furthermore, it was argued that the appointment procedure reduced the role of the executive to that of a rubber stamp, as the President’s reasons for rejecting a nominee of the chief justice could ultimately be struck down by the Court under the aegis of the Chief Justice. This did not seem to be resulting in an “efficient” operation of the constitution, in the words of British economist Walter Bagehot.

Proponents of the Al-Jehad principle argued inter alia that the procedure was not unprecedented; after all, it was taken from a ruling of the Indian Supreme Court. Moreover, in the United Kingdom, the Lord Chancellor had similar powers to appoint judges. However, the Constitutional Reform Act 2005 in the United Kingdom changed this process, as it was also criticised for giving the Lord Chancellor arbitrary power in appointing judges. Under this Act, a Judicial Appointments Commission of England and Wales was established. The composition of this 15-member Commission is interesting to note: six judges, one barrister, one solicitor, one tribunal member, one lay magistrate and five lay members, one of whom is Chairperson. The judges of the UK Supreme Court are appointed by a separate Commission comprising the Lord Chief Justice, the Deputy President of the Supreme Court and one member each of the Judicial Appointments Commissions of Scotland, Northern Ireland and England and Wales. This process, while minimising the role of the Executive, also brings other qualified persons into the judicial appointments process. For example, renowned academician Dame Hazel Genn is a lay member of the Commission. Therefore this process accords greater credence to the principle of the independence of the judiciary than the previous process where the Lord Chancellor, who as head of the Judiciary speaker of the House of Lords and member of the cabinet was a part of all three arms of the state, had a great breadth of discretion in appointing judges.

Coming back to Pakistan, the passage of the Eighteenth Amendment brought into force Article 175A of the Constitution, which was the harbinger of the Judicial Appointments Commission (JAC) and the Parliamentary Committee (PC) for Judicial Appointments. The relevant portions of Article 175A are reproduced hereunder:

175A. Appointment of Judges to the Supreme Court, High Courts and the
Federal Shariat Court
. - (1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.

(2) For appointment of Judges of the Supreme Court, the Commission shall consist of-

(i) Chief Justice of Pakistan;
(ii) two most senior Judges of the Supreme Court;
(iii) a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the two member Judges, for a term of two years;
(iv) Federal Minister for Law and Justice;
(v) Attorney-General for Pakistan; and
(vi) A Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years.

A nomination which is approved by a majority of the JAC is then forwarded to the PC, which can reject such a nomination a three-fourths majority of its members. The PC comprises eight members, four from the National Assembly and four from the Senate.

It is quite apparent that the constitution of Pakistan’s JAC is very different from that of the UK. In Nadeem Ahmed Advocate v. Federation of Pakistan (PLD 2010 SC 1165) it was argued that Article 175A violates the independence of the judiciary for a number of reasons:

  1. The PC was given wide-ranging veto powers, so much so that even a unanimous nomination of the JAC which consists of senior judges can be overturned by six out of eight members of the PC, who are legislators. This seemed to infringe on the notion of separation of powers as well, since the legislative branch now had a say in the appointment of judges.
  2. The JAC itself consists of prominent executive functionaries i.e. the Law Minister and the Attorney-General, once again allowing another branch of the state a role in a process that was specifically vested in the judiciary.
  3. It was argued that the Chief Justice is regarded as the pater familias i.e. head of the Judiciary. His role was seen to be diminished under the Eighteenth Amendment as he only had one vote in the JAC whose majority decision would be forwarded to the PC, thereby reducing his capacity as head of the judiciary.
  4. Article 68 of the Constitution provides that judicial conduct shall not be discussed in parliamentary proceedings. It was argued that an imperative safeguard of the independence of the judiciary was therefore being impinged by the PC.

It is particularly interesting to view the opinion of Abdul Hafeez Pirzada on the Eighteenth Amendment and how it, in his opinion, was violating the independence of the judiciary.


Zeeshaan Zafar Hashmi is a third year law student and has an interest in constitutional law, politics and history.

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