Method of Appointing Judges

Extracted from an email sent by the Emergency Moderator to the Emergency Mailing List on 8th March 2009

As stated a few days back, we are circulating a proposal on the method of appointing judges that is somewhat more detailed than the one given in the charter of democracy. In the mean time, the PPP has appointed another chamcha as the Islamabad High Court CJ. This is on top of the induction of 16 jiala judges in the LHC (Lahore High Court). All these appointments must be rejected, the judiciary should be unconditionally returned back to the Nov 2 status, with all post-Nov 3 appointments reversed. New appointments should then be based on a formula that ensures that no political party is able to install its own chamchas in the judiciary. This is the only way to ensure the real independence of the judiciary, and nothing short of this should be accepted by the civil society.

Coming to the proposal we are sharing, it is not our original idea, but is being taken from a 4-part series of articles by Salahuddin Ahmed in June last year. This can be a good starting point for a serious attempt to design a new system that makes the judiciary genuinely independent.

Those seriously interested in the subject should go to the links below and read all four of these articles completely, but I am also quoting the most relevant parts from these pieces right after the links.

• Part 1: http://www.dawn.com/2008/06/21/ed.htm
• Part 2: http://www.dawn.com/2008/06/22/ed.htm
• Part 3: http://www.dawn.com/2008/06/23/ed.htm
• Part 4: http://www.dawn.com/2008/06/24/ed.htm

The following is being quoted from part 3:

(i) A vacancy in the office of the Chief Justice of Pakistan should be filled by appointment of the senior most judge of the Supreme Court and that of a high court by the senior most judge of that court.

(ii) A judge of a high court should be selected by a committee none of whose member should be eligible for consideration for selection. This committee shall comprise the following:

(a) The Chief Justice of Pakistan and the senior most judge of the supreme court belonging to that province;
(b) The chief justice of the high court and two senior most judges of the high court;
(c) The federal law minister or any other nominee of the prime minister;
(d) The provincial law minister or any other nominee of the chief minister;
(e) The leader of the opposition in the provincial assembly or his nominee;
(f) A nominee of the provincial bar council chosen through a resolution of the council for a fixed duration

It is proposed that the chief justice of the high court may circulate the names of all persons (preferably two against each vacancy) that he might like to be considered for appointment to all committee members along with their particulars. At least three committee members may also propose any other person for consideration within one week of receipt of such proposals and convey their particulars to remaining committee members. The Chief Justice of Pakistan may then convene a meeting of the committee after two weeks, which may, after due deliberations, select suitable persons. No body should be appointed unless at least two third of the committee members have voted in his favour.

Appointment to the Supreme Court may be made from amongst the serving chief justices and senior judges of the high courts to ensure fair representation of all provinces. A number of seats may be allocated to each province and in respect of others selection may be made on an all Pakistan level on seniority-cum-fitness basis. The three senior-most candidates may be considered against each vacancy. Perhaps the collective decision of the senior judges of the Supreme Court could be most useful in determining the suitability of a person to be elevated. The participation of public and bar representatives could also be considered.

Similarly a six member committee for the selection of Supreme Court judges could be constituted comprising the following:

(i) The Chief Justice of Pakistan and two senior-most judges of the Supreme Court;
(ii) The federal law minister or another nominee of the prime minister;
(iii) The leader of the opposition in the National Assembly or his nominee;
(iv) A nominee of the Pakistan Bar Council.

To ensure representation of all provinces a minimum number of vacancies in the Supreme Court should be allocated to each province. Once they are filled, the remaining appointments should be made on an all Pakistan basis. The senior-most eligible judge of the high court approved by four members should be appointed.

What follows below is from part 4 of the series by Salahuddin Ahmed:

What needs to be kept in mind is that in any democratic society, the judiciary is viewed as the custodian of the rights and liberties of the oppressed. Indeed, the majority has the right to ensure this but those not in the majority and not even hoping to become part of the majority also have a right to survive and live with dignity and enjoy certain rights and freedom that are guaranteed to them by the constitution and the law. For the protection of these rights recourse to the judicial system is necessary. In a constitutional system under which the judiciary is entrusted with the duty to review executive action, it does not exercise executive powers but is required to keep a vigilant check on the manner executive or legislative powers are exercised. Therefore, unless its autonomy from executive control is ensured, no constitutional system worth its while can exist in any democratic system.

The seniority principle needs to be retained in the office of the chief justice otherwise it would cause a great deal of problems and heart burn. With respect to the appointment of judges in the Supreme Court and the high courts, I would propose that their appointment be made on the basis of the recommendations of committees which will ensure the independence of the judiciary, the participation of representatives of the public and the Bar and at the same time eliminate the possibilities of personal bias and preferences. This would enable the selection of candidates by consensus; a nominee who would be eminently suitable for the office of a judge.

The committee for appointing a Supreme Court judge should consist of:

(a) The Chief Justice of Pakistan and two senior-most judges of the Supreme Court
(b) The federal minister for law and justice or his nominee
(c) The leader of the opposition in the National Assembly or his duly nominated representative
(d) A duly nominated representative of the Pakistan Bar Council. Likewise the senior-most judge in the high court should be appointed chief justice, whereas for selection of judges, the committee should comprise the following:

(a) The Chief Justice of Pakistan and two senior-most judges of the Supreme Court
(b) The chief justice of the high court and the two senior-most judges of that court
(c) The federal minister for law and justice or his nominee
(d) The provincial minister for law and justice or his nominee
(e) A duly nominated member of the provincial bar council provided that he is not himself a candidate for appointment.

The major problem with the present system is that it entails delays in appointments and there is no disclosure of the opinion of various selectors. The way to overcome these flaws is to evolve an effective procedure. This could be done by stipulating that the particulars of prospective candidates may be circulated by the respective chief justices to members of the committees at least three weeks in advance to enable them to collect more information and form their own opinion. At least one third of the members of each committee (two in the case of the Supreme Court and three in the case of high courts) could also propose other candidates and suggest their names to the respective chief justices. The Chief Justice of Pakistan may then convene a meeting of each committee and after due deliberations, a person approved by at least two-thirds of the members of a committee may be appointed.