The judiciary, within our democratic paradigm, is the final custodian of constitutionally guaranteed fundamental rights. It is the authoritative arbiter of private disputes, and the decisive check against excesses of administrative as well as legislative authorities. As such, judges (of the superior courts) hold the very balance of our constitutional identity in their (in)fallible hands.
For the better part of our constitutional history, a mysterious secrecy has surrounded the process of judicial elevations. Cloaked under the impenetrable shield of ‘judicial independence’, successive generations have resisted infusing transparency into the process through which certain individuals are considered for elevation to the constitutional post of a Superior Court judge, and why others are ignored (or rejected).
By way of background, under the original scheme of our Constitution, Judges of the Supreme Court were to appointed “by the President, after consultation with the Chief Justice” (Article 177), and Judges of the High Court were appointed by the President after “consultation” with the Chief Justice, the concerned Governor, and Chief Justice of the relevant provincial High Court (Article 193). Within this framework, at least prima facie, the President of Pakistan had the constitutional authority (and discretion?) to nominate individuals for judicial elevation.
This illusion, however, was short-lived. 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 “consultation” of the Chief Justice, in the case of judicial elevations, was binding upon the President; thereby granting Chief Justice the sole prerogative of recommending individuals for judicial appointment, without disclosing any objective method of assessing why one candidate was preferred over another.
Within this context, the lawyer’s relationship with the bench became just as important as his/her professional competence and temperament for being elevated to the superior judiciary, thus prompting criticism that judicial elevations reflect a system of hereditary patronage – the son of a judge, or a senior lawyer, was more likely to be elevated, as opposed to an equally qualified (less ‘connected’) colleague.
The 18th Constitutional Amendment (supplemented by the 19th Amendment) made a bold attempt to break this unfettered hegemony of the Chief Justice over the judicial appointment process. Specifically, through introduction of Article 175A, a “Judicial Commission” (headed by the Chief Justice, and comprising of a majority of judges) was constituted in order to recommend candidates for elevation, who would then have to be confirmed by a “Parliamentary Committee” (comprising of four members each from the Senate and the National Assembly, in equal proportions from the government and opposition). Still, however, the sole authority to initiate a candidate’s name, for consideration by the Judicial Commission, remains with the Chief Justice – who is not bound to provide any reasons for his (subjective) preferences.
To accentuate the issue, an arc of jealous jurisprudence from the honorable Supreme Court has gradually diluted the tiered framework of 18th Amendment, thus reclaiming unfettered authority over the judicial appointment process. Specifically, per Munir Bhatti’s case (PLD 2011 SC 407), the Parliamentary Committee has no authority to question recommendations of the Judicial Commission; and per Presidential Reference No. 1 of 2012 (PLD 2013 SC 279) the honorable Court has declared that the President cannot interfere with recommendations made per the “subjective” satisfaction of the Chief Justice and members of the Judicial Commission.
In all, the trajectory of our jurisprudence has been geared towards resisting the democratization of judicial appointment process, and preserving the non-transparent discretion of the Chief Justice.
Consequently, we have a constitutional structure in which the Chief Justice – while soliciting recommendations from the provincial High Courts – enjoys the sole authority to propose individuals for judicial elevation, without disclosing any transparent criteria for the same. And members of the Judicial Commission decide the fate of these recommendations, after deliberating upon undisclosed facts, for unknown reasons, none of which can be viewed by the public or by any other constitutional body.
Recently, however, in a brave departure from this enigmatic culture, Chief Justice LHC, Syed Mansoor Ali Shah, has attempted to introduce some measure of systemic transparency into possible recommendations for elevation to the honorable LHC.
As it turns out, a public-interest petition titled Muhammad H. Mujahid v. Federation of Pakistan was recently filed before the honorable LHC, with a prayer to, inter alia, “complete” the full strength of LHC by elevating 13 more judges to the bench. While entertaining this petition, the honorable CJ of LHC revealed that he had started a broad-based consultative process, in order to solicit recommendations for possible elevation. To this end, suggestions had been sought from “Supreme Court Bar Association, all the High Court Bar Associations, Pakistan Bar Council, Punjab Bar Council, and all the District Bar Associations in Punjab”, resulting in receipt of 280 names from all over Punjab (including 20 District Judges, selected according to seniority). In effect, short of a public advertisement, as broad a consultative process as possible had been conducted, so as to ensure that every potential candidate is afforded an (equal) opportunity of being considered for judicial elevation.
Thereafter, each recommended individual (without any personal preference) had been sent an “Information Form”, seeking details of casework, reported judgments, and (importantly) income tax returns for the past three years. And a sample of the said forms (for advocates as well as District Judges) was appended to the order-sheet of the case, for everyone to view.
Per the envisioned process, candidate who submits a completed form will be called for an interview – to be conducted by a panel of senior judges of the honorable LHC, thereby minimising the possibility of individual bias. Once the interview process (for each candidate) is completed, short-listed recommendations shall be forwarded to CJP, for due consideration by the Judicial Commission.
This process may not be perfect, but it is likely to have a profound impact on the tenor and credibility of judicial elevations in Punjab. Perhaps the usual hereditary titles and famous last-names will still find it easier to join the venerable comity of ‘MiLords’. But, at the very least, it will become harder for people to crawl out from the shadows and cry nepotism against those who don the robes. It will become tougher for aspirants to claim that they were ‘not even considered’ for the honor. Or that invisible men, for silent reasons, decided to pass them over.
It can only be prayed that this initiative of Chief Justice Shah finds resonance across the judicial spectrum. With towering personalities of Justice Saqib Nisar and Justice Asif Khsa (both institutions in their own right) set to take the helm of affairs at the august Supreme Court, it is hoped that this sentiment will find voice as the institutional ethos of a more transparent system of judicial elevations.
The truth is that the existing system of nominating individuals for judicial elevation, which is isolationist in nature, belongs to a bygone colonial age. Its closed-door approach breeds resentment among those who (later) feel aggrieved by judicial pronouncements. Mystery must stop outside the gates of judicial empire… An empire that must be transparent and pristine for everyone to see!
Justice Brandeis once famously said, “Sunlight is the best disinfectant.” It is time for our judiciary to allow sunlight behind its veil of secrecy. It is time to embrace transparency, and open the doors of judicial mystique to the public at large – the final custodians of our Constitution. And following the lead of Chief Justice Shah, it is time to start a candid debate about the possible contours of a transparent system of judicial elevations.