There can be no republic without public. In a democratic system, the management of affairs in the legislative, executive and the judicial organs is actually supposed to be a public concern rather than of those organs. Admittedly, being experienced in their areas, these organs collectively, or their Chiefs in a group, may certainly have their opinion to a certain reasonable extent in the management and appointments of their respective organs but not a sole concern. Individuals or groups may be vulnerable to certain unavoidable inbuilt human weaknesses like subjective demeanors. What aggravates the situation is structural issue found in the systems, particularly in the event of appointments to the key positions, especially to the High and Supreme courts. Protections for the systems may simply be found within the presence of a transparent and independent structure. The management of judicial affairs in general, and the appointments in particular, carry supreme importance in view of the judiciary being custodian of the constitution and law.
Judicial management in Pakistan, inter alia, has been and is still passing through a phase of complex judicial myth. It frequently becomes talk of the town through wide spread criticism from the lawyers and the Bar Councils in almost all events of elevations. Mo matter proceeds in the best bona fide intentions, or under Presidential sole discretion and authority to pick or drop any judges or even under the impregnable and impenetrable power of a judicial collegiums system to initiate the recommendations for the unadvertised candidates based on very unseen and unquestionable process of consultation and without disclosing any criteria and fulfillment of legal knowledge, skills and abilities and above all candidate’s personal qualities including integrity, fairness, understanding of people and society and humanistic soul as well as temperament.
Once the pendulum of discretion was so tilted towards the political collegiums that through whims of the ‘impartial’ President, the head of state, under Article 177 of the Constitution of Pakistan, 1973, was vested with the sole discretion and authority to decide the fate of the nominations initiated by the Chief Justices of the High courts, vetted by the Governors and finally thumb nailed by the Chief Justice of Pakistan. The files were mostly held by the Governors, Chief Justices and finally the Presidents with the objections on certain candidates on the basis of some ‘reports’ which any one of them was not bound to disclose. The objections, however, were happily overruled on insertion of names of certain missing ‘capable’ candidates from the ‘delivering’ chambers or with reputed fatherly or god-fatherly last names. Thus, the public concern was best utilised by the President in the name of Republic to safeguard his party collegiums’ future constitutional concerns by way of having such judges on the benches except few incapable of proving their loyalty in the times of their political ordeals. However, Al-Jihad Trust case reported as PLD 1996 SC 324 poked into such enjoyments whereby the consultation of the Chief Justice of Pakistan was held to be binding on the President, rightly rendering it a concern to the honor of Chief Justice under the principle of independence of judiciary from the other organs of the state.
This time, however, the pendulum touched the pinnacles on the other extremes where the judge’s sons and the other esteemed chambers prevailed vis-à-vis truly professional and capable candidates but lacking necessary strings. They were, however, ultimately helpful in contributing the judicial public service by providing the internship to the judges on the benches even from across the rostrums.
In both of the cases, however, it turned out to be unfortunate for so many judges and their human families who lost their jobs, nay their senses and minds, short of confirmation, en masse by a single stroke of discretion solely shifted to the Chief Justice of Pakistan in the past when in 2009, initially 100 in the country and 16 judges of the Lahore High Court were deposed under the PCO. Later in 2010, 21 recommended by and 10 close to a former Chief Justice, LHC, all once appointed by the Chief Justice of Pakistan himself, were deposed.
The need of the hour to reconcile the two extremes of Collegium’s syndrome was catered to in the 18th Amendment, which was accepted by the lawyers, professionals and above all the public. In 2010, perhaps based on the pattern of Britain’s independent Judicial Appointment Commission (JAC), a Judicial Commission (JC) headed by Chief Justice of Pakistan was established under Article 175-A of the Constitution comprising senior most judges of the Supreme Court, Federal Minister of Law and four members of Parliament, with equal proportion from the government and the opposition, inter alia, for the appointment of the judges of the Supreme court, as well as for upgrading Chief Justices of the Provincial High Courts and Provincial Ministers of Law, inter alia, for the appointment of the judges of the provincial High Courts. However it, too, could not sustain the euphoria of being an independent body. In Muneer Bhatti’s case (PLD 2011 SC 407) and in PLD 2013 SC 279, the Supreme Court declared that Parliamentary Committee and the President had no authority to question the nominations or interfere in the affairs of Chief justice and the Judicial Commission.
Undoubtedly, as maintained by many Indian jurists and judges, no collegiums system would ever plead for political supremacy in judicial appointments. To allow the Chief Justice practically a veto upon appointment of judges is to transfer the authority to the Chief Justice, which we cannot afford to accept. Resultantly, we find two extremes while groping in the dark and hence anarchy in between with no established structure embedded that is independent and transparent. There is no defined selection process to determine promotions based on a competitive mechanism as adopted in the selection of posts to the civil superior federal, provincial and even lower judicial and prosecution services.
Although absolute credibility may not be attested in the instances of the Public Service Commissions but fairly they are seen to have held to some level of independence, transparency and a wide range of public participation for all the aspiring, capable and hardworking candidates in comparison to the high chambers and last names in the judicial appointments. The high level of public participation renders it to be more a public concern than of any institution or its collegium. An Inspector General of Police, Chairman FBR, Secretary Establishment Division, a Chief Secretary or other Federal Secretaries have no direct concern and involvement in the appointment of the civil servants to their departments leaving it on the sole discretion of the independent commissions.
The instant process adopted by Mr. Justice Mansoor Ali Shah, the Honorable Chief Justice, Lahore High Court, Lahore by inviting CVs and interviews for the appointment of the judges of the Lahore High Court is a bold step. It was first welcomed but subsequently questioned by various Bar Associations, maybe due to some personal stakes. It is noteworthy that the Apex court has already gone a step ahead by declaring certain administrative posts unlawful made at Islamabad High Court in Muhammad Akram Vs Registrar’s case.
Under the circumstances, the only solution which seems tenable is that the selection to the superior courts be also made through competitive examinations involving written, psychological and oral tests best suited to the peculiar requirements of the profession, held by the independent judicial commissions. There has to be a concrete eligibility and selection criteria including public advertisement for the practicing lawyers, attorneys, jurists and academicians. Curing the collegium symptoms anywhere is not only in the interest of public at large but also in the interest of judicial management itself.