Just as the nation was entranced by the news of Imran Khan and Reham Khan’s divorce, and the exceptionally transcendental impact that this has on our national destiny, somewhere in the quiet corners of our State structure, a group of eight parliamentarians, who form the Parliamentary Committee (for appointment of superior Court Judges), made an announcement, on Thursday, that they would no longer hold any further meetings to consider recommendations of the Judicial Commission, since their constitutional authority had been rendered meaningless, and reduced to nothing more than a rubber-stamping post office.

Convened under the chairmanship of Syed Naveed Qamar, members of the Parliamentary Committee issued a statement that: “The committee unanimously was of the considered opinion that its meetings were not only a burden on the exchequer but also a waste of time as committee’s recommendations carry no weightage in view of the pronounced judgements”. And just like that, out of sheer frustration and a deep sense of purposelessness, enforced through judgments of the honorable superior Courts, the constitutionally created Parliamentary Committee (under Article 175-A of the Constitution) has decided to die its silent death.

Drowned somewhere between the great paparazzi uproar of a failed marriage, and the eminent broadcasting of Local Government elections, the Parliamentary Committee has received ignorable mention in our national discourse. But in the context of our constitutional paradigm, the frustration voiced by members of the Parliamentary Committee has far-reaching effects that would outlast the sensationalism of the current news cycle. And for this reason, in defense of constitutionalism as well as democracy, the role and ambit of the Parliamentary Committee for the appointment of the superior Judiciary, must be credited with our keen review and vociferous debate.

By way of background, under the original scheme of our Constitution, Judges of the Supreme Court were to be appointed “by the President, after consultation with the Chief Justice” (Article 177), and Judges of the High Court were to be appointed by the President after “consultation” with the Chief Justice, the concerned Governor, and Chief Justice of the provincial High Court (Article 193). Under this regime, at least prima facie, the President of Pakistan had the constitutional authority (and discretion?) to appoint Judges of the superior Courts. In the decades that followed, as our jurisprudence evolved to imbibe a stronger sense of ‘independence of judiciary’, our superior Courts, through judicial dictas, curbed the President’s presumed power to have autonomy over the judicial appointment process. Finally, through the landmark judgment of Al-Jehad Trust (PLD 1996 SC 324), followed by Asad Ali’s case (PLD 1998 SC 161), the honorable Supreme Court declared that the recommendation of Chief Justice of Pakistan, in his “consultation”, is binding upon the President, for matters concerning appointment of superior Judges; the President, in exceptional circumstances, could disagree with recommendation of the Chief Justice, but such disagreement had to be done through express reasons, which were justiciable before the Court. This evolved mechanism of judicial appointment meant a virtual hegemony of the honorable Chief Justice over the judicial appointment process, thus giving birth to the empire of ‘pater familias’.

Over the next decade, this binding nature of consultation, which effectively placed the entire judicial appointment process at the discretion (whim) of one individual, was further strengthened. Culminating in Sindh High Court Bar Association case (PLD 2009 SC 879) (which removed over 100 superior Court judges), the then Iftikhar Chaudhary Court decided, inter alia, that even a Judge who had not been sworn in on the PCO would stand removed from office, on the ground that his appointment had been done without “consultation” (and oath) from the “Constitutional” Chief Justice.

Almost as a reaction to the unbridled power of pater familias, a unanimous parliament introduced Article 175-A through the Eighteenth Constitutional Amendment, thereby fundamentally changing the manner in which the appointment of superior Judiciary was to be done. In particular, Article 175-A attempted to ‘democratize’ the appointment process of superior Judiciary, by creating a Judicial Commission (which would “nominate” the proposed appointment), and a Parliamentary Committee (which would “confirm” the nomination), prior to the same being “appointed” by the President. Immediately, thereafter, the Eighteenth Constitutional Amendment was challenged before the honorable Supreme Court, which threatened to strike it down, but was placated by passing of the Nineteenth Constitutional Amendment (which granted the judicial branch a majority in the membership of the Judicial Commission, to be headed by the Chief Justice).

As such, despite a move for a Constitutional democratization of the judicial appointment process, the honorable Supreme Court through a threat of striking down Article 175-A, ensured that the judicial arm (and in particular the Chief Justice) retains control over the appointment of superior Judiciary.

There still remained, however, the minor inconvenience of the Parliamentary Committee.

This inconvenience had the audacity to raise its tentacles in 2011, by calling into question the extension granted (by the Judicial Commission) to six honorable Judges of the provincial High Courts. In deciding the matter, Munir Bhatti Vs FoP (PLD 2011 SC 407), a four member Bench of the honorable Supreme Court declared that the Parliamentary Committee has no authority to question the recommendations of the Judicial Commission (at least in regards to issues that have been considered), and is required to confirm the nominations of the Judicial Commission. Consequently, the Parliamentary Committee, despite being a constitutionally empowered body was stripped of its authority to independently make assessments about judicial nominees.

With the Parliamentary Committee neutralized, a few months later, when the issue of appointing Justice Anwar Kasi as Chief Justice of Islamabad High Court, (superseding Justice Riaz Ahmed Khan), was presented before the President of Pakistan, he moved a reference to honorable Supreme Court (Presidential Reference No. 1 of 2012) to seek guidance as to whether he was bound to make the said appointments or had the power to disagree with the same. The majority judgement of the honorable Supreme Court declared that the President had no power to question the recommendations made by the Judicial Commission, which could be made per the “subjective” satisfaction of the Chief Justice and the Judicial Commission.

And as a consequence, the post Eighteenth Amendment jurisprudence of the honorable Supreme Court, seems to have entirely undone the process of democratization of the judicial appointments, thus rolling back the constitutional clock to the time when the honorable Chief Justice, as pater familias, had virtually complete dominion over who gets appointed as a Judge. In the circumstances, the grievance of members of the Parliamentary Committee is not without substance, in that, despite having been created through the same Article that creates the Judicial Commission, the Parliamentary Committee has been rendered constitutionally irrelevant; in practice, it is nothing more than a mere post office, with the sole responsibility of forwarding the Judicial Commission nominations to the Prime Minister and the President.

While protecting and upholding the independence of judiciary, it is important to realize that a truly independent judicial culture, in addition to being free from executive influence, must also be emancipated from paternal deference to any individual, (even if the individual is the Chief Justice) or any body (even if it is the Judicial Commission).

It is time that our judicial culture embraces the democratic nature and spirit of the constitutionally anointed appointment process, which is not completed behind closed-doors for silent reasons, known only to a select few. It is time that the judicial appointments, which are fundamental to the defense of our freedoms, are done in the light of the day.