The Judicial Commission of Pakistan met, on Friday, to consider the confirmation and extension of several additional judges of the honorable Lahore High Court (LHC) and the Peshawar High Court (PHC). For undisclosed reasons, as is customary for all proceedings of the Judicial Commission, four additional Judges of the LHC and two additional Judges of the PHC were “confirmed”, whereas six additional Judges of LHC were granted a one year extension. On the flip side, members of the Judicial Commission decided not extend or confirm the tenure of three additional Judges of the LHC, effectively removing them from the bench.

The precise facts and considerations presented before the Judicial Commission are not open to public. And thus, there is no real way to comment on the merits of the decision itself. However, what must be considered, and debated at length, is the manner and process through which we appoint individuals to the seats of justice in our country.

Historically, the President of Pakistan (the constitutional appointing authority) had some role in the selection and appointment of the superior judiciary, “after consultation with the Chief Justice” (per the then Article 177 of the Constitution). In 1996, however, through the Al-Jehad Trust case (PLD 1996 SC 34), the Supreme Court altered this paradigm to hold that advice of the Chief Justice, rendered during the “consultation” process for appointment of judges, was binding on the President (who, in exceptional circumstances, could reject Chief Justice’s nominees by giving written reasons, which were justiciable before the court). In effect, starting with Al-Jehad Trust, the Chief Justice of Pakistan became the de facto authority for judicial appointments, without being bound by any objective method of assessing why one candidate was preferred over the other. Consequently, the lawyer’s relationship with the bench became just as important a factor as his/her competence and temperament, for being elevated to the superior judiciary.

The 18th Amendment made a bold attempt to break this hegemony. Keeping the mechanics aside, through the insertion of Article 175A of the Constitution, a “Judicial Commission” was introduced (comprising of the Chief Justice, two most senior judges of the Court, a former Chief Justice/Judge recommended by the Chief Justice, Federal Law Minister, the Attorney General, and a nominee of the Bar Council). On a recommendation made by the Chief Justice of Pakistan (alone), this Commission, by majority, could recommend a candidate to the “Parliamentary Committee” (comprising of four members each from the Senate and the National Assembly, in equal proportions from the government and opposition), which could ‘not confirm’ the nominee by three-fourth majority within 14 days (giving reasons), barring which the nominee was confirmed. The idea behind this two step-process (tilted strongly in favor of the recommendations made by the judges on the Commission) was to infuse some measure of transparency into the judicial appointment process.

This infusion of “outsiders” into the judicial appointment process was deemed so offensive to the tender fabric of judicial independence that the Amendment was challenged before the apex court, and nearly struck down. As a compromise of sorts, the Parliament passed the 19thConstitutional Amendment, which increased the representation of judges in the Judicial Commission, confirming their dominance over the appointment process.

The role of the “Parliamentary Committee”, as a non-judicial entity in the chain of appointment, still lingered on. This too, however, was put to rest in early 2011, when the people’s representative in the Parliamentary Committee dared to show some tenacity by not confirming a few recommendations of the Judicial Commission. This belligerent exercise of constitutional authority was challenged before the Supreme Court, in Munir Hussain Bhatti’s case (PLD 2011 SC 407), and declared to be an infringement of the ‘independence of judiciary’. And of course there was also that time when the President tried to question the Judicial Commission on its decision to elevate a junior judge to the seat of Chief Justice of Islamabad High Court, only to be reminded by the honorable Supreme Court that the President had no such authority.

Consequently, we now have a constitutional structure in which the Chief Justice (without any objective criteria) proposes names for judicial appointment, members of the Judicial Commission consider these recommendations, deliberate upon undisclosed facts, make recommendations for unknown reasons, none of which can be viewed by the public, or overseen by any other constitutional body. And in arriving at this final structure, the express letter and spirit of the 18th and the 19th Constitutional Amendments has been entirely undone.

Keeping aside the jealous conception of a precariously brittle ‘independence of judiciary’ – not having people’s voice be a part of the judicial appointment process takes the counter-majoritarian idea to the edge of being undemocratic! In our democratic dispensation, the people of Pakistan, through their elected representatives, have written the law of our land – in the solemn belief that they will be governed in accordance with their will and aspirations. This law of our land eventually finds authoritative meaning in judicial pronouncements. Since the law is what the court says it is, and what the court says it is can vary extravagantly depending on who the judge is, should the people not have some stake in who gets to interpret and apply the law that governs the contours of our freedom? Do they not, at least, have a right to know why one individual was picked to become a judge, over the others? Or why one was confirmed and the other was not? Must a small group of unelected “old white men” (in the words of Dicey) be entrusted with absolute and unfettered authority to pick the arbiters of our rights?

At the very least, even if the “people” are too crude to be entrusted with such secret knowledge, is it not imperative that the additional Judges, who were “not confirmed” by the Judicial Commission, based on undisclosed personal preferences and “intelligence reports”, be confronted with the evidence against them? Would this not eliminate the possibility of personal bias, without justification, from seeping into the decision of members of the Judicial Commission? Is it not a fundamental principle of natural justice, one that is an inherent part of all proceedings (including Judicial Commission) that no man shall be condemned unheard? Even within our law, can evidence be accepted without an opportunity of confrontation or cross-examination? And if these ideals really form the core of our jurisprudence, must they not form an integral part of the Judicial Commission proceedings?

The existing mechanism of judicial appointments in our country, which is isolationist in nature, belongs to a bygone age of secrecy. It is time to open the doors of judicial mystique, and make the process more inclusive in nature. With a fierce belief in the ideal that transparency in the judicial appointment process will strengthen our courts and brighten the gleam of our laws.