Process of appointment of superior judiciary in Pakistan Part I

 By Zeeshaan Zafar Hashmi

The issue of appointment of the superior judiciary in Pakistan came into the limelight recently with the passage of the Eighteenth and Nineteenth Amendments to the Constitution of Pakistan. The aim of this article is to elucidate the mechanism for appointment of the superior judiciary in Pakistan before and after the passage of these amendments.

Before the Eighteenth Amendment

Prior to the promulgation of the 18^th Amendment, the appointment process for Supreme Court judges was pursuant to Article 177 of the Constitution and that of High Court judges to Article 193. The relevant portions of these articles are reproduced hereunder:

177 (1) The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.

193 (1) A Judge of a High Court shall be appointed by the President after consultation-

(a) with the Chief Justice of Pakistan;

(b) with the Governor concerned; and

(c) except where the appointment is that of Chief Justice, with the Chief Justice of the High Court.

In the seminal case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), the Supreme Court of Pakistan interpreted the words “after consultation” in the aforementioned articles as giving binding effect to the consultation of the concerned Chief Justice vis-à-vis the appointment of Supreme Court and High Court judges. In his judgment, the then Chief Justice of Pakistan Sajjad Ali Shah referred to and applied the interpretation of the word “consultation” in a judgment of the Indian Supreme Court in Advocates-on-Record Association v. Union of India (AIR 1994 SC 268). The interesting analysis of the word “consultation” by the Indian court is given below:

“The persons to be selected for appointment to judicial offices are only those who… are known to the Judges of the superior Courts. The executive can have no knowledge about their legal acumen and suitability for appointment to the high judicial offices. In the process of consultation the expertise, to pick-up the right person for appointment, is only with the Judiciary. The “consultation”, therefore, is between a layman (the Executive) and a specialist (the Judiciary). It goes without saying that the advice of the specialist has a binding effect. If the true purpose of consulting the Judiciary is to enable the appointments to be made of persons not merely qualified to be Judges, but also those who would be the most appropriate to be appointed then the said purpose would be defeated if the appointing authority is left free to take its 'own final' decision by ignoring the advice of the Judiciary… The requirement of prior “consultation” with the superior Judiciary is a logical consequence of having an independent Judiciary… If the Executive is left to ignore the advice tendered by the Chief Justice of India in the process of consultation, the very purpose and object of providing consultation with the Judiciary is defeated. The Executive is therefore bound by the advice/recommendation of the Chief Justice of India in the process of consultation…”

The Supreme Court of Pakistan applied this rationale in appointing judges of the superior Courts. The consultation of the Chief Justice was to be taken as binding absent very sound reasons to the contrary given by the President of Pakistan. These reasons were justiciable, i.e. they were subject to review by the Court. Therefore, the Court could effectively declare the President’s reason’s as unsound, leaving the Executive role in appointment of judges akin to that of a rubber stamp. This landmark judgment continued to operate as the authority for judicial appointments, as was reaffirmed inter alia in Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 SC 939) and Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879).

Continued.

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