On Wednesday, the legal fraternity decided not to accord formal send off to those retiring judges who as members of the Judicial Commission of Pakistan (JCP) backed its July 28 decision by a majority of five to four to elevate a junior judge of the Sindh High Court to the Supreme Court. The elevated judge had superseded four of his seniors, including the chief justice. Of the five honorable judges who voted elevation, one is retiring in less than two weeks from now.
Bar’s tradition of according warm send off to retiring judges is a public recognition of the services rendered during a judge’s career. It is rare to withhold it and rarer still if the intent is made public in advance. It is a moment of introspection and reflection.
The bar meeting was held in the building of the Supreme Court and presided over by Pakistan Bar Council Vice Chairman Khushdil Khan. Attended by vice chairmen and chairmen executive committees of provincial bar councils, president of different bar associations and PBC as well as representatives of the bar councils to the JCP, its representative character cannot be denied.
That the Punjab Council, the Punjab Bar Association, the Rawalpindi Bar Association and the Multan Bar Association did not attend the meeting should not detract from the significance of the resolution adopted. Indeed, this division in itself is also a matter of introspection and reflection.
The Bar’s representative body also decided to write letters to the eight-member bipartisan Parliamentary Committee on the Appointment of Judges to decline the nomination made by the Judicial Commission. They also decided to hold conventions to build public pressure for rejecting the nomination made by the JCP.
Many experts are of the view that seniority alone is not the best criterion for elevation. Other factors like integrity, reputation, past judgments and a commitment to strengthening all pillars of democracy not of the judiciary alone must also weigh in while making appointments and elevating judges.
Junior judges in the past have been elevated to the Supreme Court. In April 2018 Justice Muneeb Akhtar who was fourth on the seniority list of the SHC was also elevated. Two judges of LHC were also elevated in the past superseding the then LHC CJ. Both later ended up as chief justices of Pakistan.
The central issue thus is not merely the elevation of a junior judge to the Supreme Court. The central issue is the composition and powers of the Judicial Commission and its relationship with other democratic structures and stakeholders in the judicial system.
The issue is whether appointments and elevation of judges be made solely by the judges dominating the JC or there must also be meaningful participation of all other stakeholders including the Parliament, Prime Minister, President and the bar bodies.
The 18th Amendment introduced Article 175-A in the Constitution. It gave for the first time a modest role to the Parliament in selection of judges through a bi-partisan Parliamentary Committee. However, the court of Iftikhar Chaudhry did not like it. The Parliament then passed the 19th Amendment, drastically cutting down its own role through the PC. I remember how parties’ office bearers belonging to the bar were in the forefront in persuading their leaders to defer to the wishes of CJP Iftikhar Chaudhry as against others not belonging to the bar.
The Chaudhry Court was still not pleased and ruled that the decisions of PC were subject to judicial review. The JC thus made 126 nominations during the period 2010-13 in the superior judiciary. When the PC disagreed with only eight cases, the court overturned its disagreements. This reduced the PC to a mere rubber stamp as JC was made the sole authority for appointment of judges.
President Zardari decided to take the bull by its horns. Against the advice of some legal wizards in the party, he filed a constitutional reference seeking opinion of the Supreme Court on several questions of law including the proper role of the JC, the PC, PM and the President in the appointment of the judges. He also sought the court’s opinion on whether any member of the JC other than the CJP can also initiate names for appointment of judges.
The SC ruled, “The role of the Prime Minister and the President in the appointment of Judges of the superior courts is nothing but ministerial, and after receiving the nomination from the Committee the Prime Minister and the President have no discretion but to forward /appoint the nominees,” thus literally holding that these offices were no more than mere post offices.
About the question of initiating nominations in the JC, the learned court merely stated that the rules provided for nominations to be initiated by the CJP or the CJs of High Courts.
Since it comprises mostly of judges, the honorable chief justice has become the initiator of all nominations which are then approved by the Judicial Commission. The JC also made its own rules and decided to conduct its business in secrecy. While the Constitution specifically provides for in camera proceedings of Parliamentary Committee, it lays no such restriction on the JC which chose to impose secrecy under its rules.
An Honorable CJP alone deciding such matters can result in packing the judiciary with judges possessing a particular mindset. The issue is not merely of competence and integrity. It is also of the mindset. The glory of the judiciary lies in the diversity of judicial opinions. It does not lie in the appearance of a monolithic body seemingly acting under command of Honorable CJP.
Of all organs of the state, the judiciary alone has the power to define limits of other organs. It is an awesome power. It calls for a regime in which this huge power is exercised with modesty, humility and restraint on the one hand and a credible system of oversight on the other.
For the glory of the judiciary, the Parliament and other stakeholders should assert themselves in matters of judicial appointments, elevation and disciplinary actions. Seven years after the 18th Amendment the Parliament passed the Right to Information Act 2017. For the glory of the judiciary also a thought may be given to examining the provision of secrecy in the rules of JC under this Act.
The writer is a former senator.