Who will watch the watchmen
In an unprecedented move, the Honourable Chief Justice of Pakistan has released the complete audio of the Judicial Commission of Pakistan’s proceedings, in which the names of five judges of High Courts were being considered for appointment into the Supreme Court. In the last few years, the Commission has frequently made appointments to the Supreme Court based on “merit” rather than “seniority”. In many cases, the Chief Justice of High Courts has been ignored and judges much junior to others have been appointed to the Supreme Court. The Bar Councils and Bar Associations have severely criticised this arbitrary practice of superseding senior judges and have lobbied for the formulation of objective criteria. They have also strongly advocated that till the time such criteria are formulated, judges should only be appointed to the Supreme Court based on their seniority in the respective High Courts to minimise arbitrariness and uphold fairness.
From the audio, it transpired that in the last meeting, the Commission decided to constitute a committee for framing rules so that appointments in future can be made in a structured manner based on “merit”. Mr Akhtar Hussain, Member Pakistan Bar Council, in the Commission meeting has informed that only one meeting of the rules committee was held. He, along with Mr Justice Sardar Tariq Masood, and Mr Justice Qazi Faez Isa, Law Minister, and Attorney General was sharply critical of holding another Commission meeting without first framing of rules. The majority of members of the Commission also objected to not considering Mr Justice Athar Minallah for the appointment, who is the senior Chief Justice (Islamabad High Court) across Pakistan. The lawyers practising in Islamabad can vouch that Justice Minallah is an extremely competent, hardworking and brave judge. His judgments are well drafted and his recent landmark judgment in the Islamabad Zoo case (Islamabad Wildlife Management Board vs MCI [PLD 2021 IHC 6]) was even quoted by the New York Court of Appeal in a similar matter being adjudicated there, which was also reported in the New York Times. For the last six years, there is not a single judge from Islamabad in the Supreme Court and yet the Commission has consistently overlooked Justice Minallah for appointment in the Supreme Court.
The two-and-a-half-hour session was chaired by the Honourable Chief Justice patiently. However, it seems that whilst Mr Justice Qazi Faez Isa was speaking and had yet to conclude his views, the Honourable Chief Justice decided to end the session without conclusively deciding the outcome of the meeting. Due to this, the Commission members are rebutting each other’s version as to whether the names were “deferred” or “rejected”. However, one conclusion which flows from the audio is that the majority agreed that unless rules are framed and an objective criterion is devised, future appointments in the Supreme Court should be put on hold. Article 175(A)(4) of the Constitution empowers the Commission to frame rules regulating its procedure. Although the Commission has framed a one-page “The Judicial Commission of Pakistan Rules 2010” regulating its procedure, the Commission is yet to frame any rules prescribing standards or a yardstick for appointment in the Supreme Court (or even in the High Court for that matter).
As legal practitioners, we have witnessed that courts have always strived to bring transparency, merit and openness in appointments and promotions in the executive and have held that there is no concept of “unfettered discretion”. Ironically, the Commission comprising of the same judges has shied away to apply the same principles regarding their appointments, which are often shrouded in secrecy, arbitrariness, personal likes and subjective opinions. Legally speaking, an appointment to the Supreme Court is not a promotion, however, for practical purposes, it is one since a judge from the High Court is sent higher up the ladder. If civil servants are promoted to higher posts under a well-defined structured formula, why can’t appointments be made in the Supreme Court in a like manner? Although the Honourable Chief Justice has rightly pointed out in the meeting that there cannot be a straitjacket or mathematical formula for appointments to Supreme Court, it is submitted with due deference that there can neither be unfettered nor unstructured discretion with the Commission.
The Supreme Court has also consistently held that under the Constitution and laws of Pakistan, no arbitrary discretion vests with any public official and the discretion, where vested, is to be exercised in a structured manner (Aman Ullah Khan vs. The Federal Government [PLD 1990 SC 1092]). Regrettably, the history of judicial appointments has been contrary to the above well-settled law. The Commission is a product of the Constitution and only has such powers as having been conferred by the Constitution and the law. It is not a supra constitutional body nor can it enjoy unfettered or unstructured discretion. The principles of transparency, fairness and structured and non-arbitrary discretion are fully applicable to the Commission while making appointments to the most sacred and highest public office in the land.