Whether we approve it or not, judiciary too, along with army, politicians and bureaucracy, has played an extremely important role in shaping Pakistan's history and almost all political matters have ultimately come before the Supreme Court for decision in one form or the other. Whether it was a matter of the governor general's dissolution of the Constituent Assembly, banning of Jamaat-i-Islami as a political party, military takeovers by Zia or Musharraf, removal of Benazir Bhutto and Nawaz Sharif by presidents, the courts have been involved as final arbiters. From the way things are going on in the country, it appears this political role of the judiciary is unlikely to change. This is why appointment of a superior court judge is an issue of public importance and people would want the process to be transparent and fair so that the persons appointed are above board and of integrity. However army, bureaucracy and politicians in power have always opposed an independent and free judiciary. The relationship of politicians and judges in particular is an interesting study of love and hate. Politicians, when out of power, are the most vocal supporters of an independent judiciary but when in power, they become intolerant to dissent and resent their actions being challenged in courts. Nawaz Sharif's government has been accused of influencing Justice Qayyum to decide the case against Benazir. The attack on the Supreme Court also took place during his time when the Chief Justice Sajjad Ali Shah's independence was deemed unacceptable. The same Sharif became a champion of judiciary's independence in the movement for restoration of deposed judges when out of power. PPP leaders, when they were out of power and facing cases before a partial judiciary, vowed to make judges independent, but we recently saw that when the Party came into power they too refused to reinstate Chief Justice Iftikhar Chaudhry until peoples' revolution forced them to do so. After Supreme Court's decision of removing judges appointed by Justice Dogar, a large number of new appointments are to be made in the High Courts. Everyone seems to be rushing to have their favourites nominated. This has resulted in a controversial debate between Punjab's chief minister and governor as to which one of them is to be "consulted" for these appointments. Rumour is that PPP felt that the initial list of judges prepared by Lahore High Court Chief Justice Khawaja Sharif was one sided and included many persons from the chamber of Mr Sharif himself. This led to the rejection of nominees by the governor and the Chief Justice of Pakistan. Since then stakeholders have been unable to reach consensus while public continues to suffer due to the delay in cases. Many feel that this tussle between the chief minister and the governor is not about appointment of persons of integrity as per peoples' aspirations but rather a contest of who can get the maximum number of their "supporters" in judiciary. The impression is that whoever controls the judiciary can also have future political disputes decided in their favour. The suo moto exercise of powers by the Supreme Court and High Courts is also seen as a threat which can be overcome if one controls the judiciary. Given that Pakistan faces many grave issues this controversy if for personal reasons is unfortunate. What is then the process of appointment of judges in Pakistan? Article 193 provides that a judge of a High Court is to be appointed by the president after "consultation" with (a) the CJ of Pakistan, (b) governor concerned, and (c) CJ of the High Court. Supreme Court interpreted Article 48 of the Constitution and decided in Presidential Reference No 1 that the president while performing constitutional functions including the act of appointment of a High Court judge is bound by prime minister's advice. By virtue of this judgement the prime minister also participates in the appointment of High Court judges. The process of consultation is of course shrouded in mystery and not transparent. Does the chief minister also have a role to play in this process? Article 193 does not mention anywhere that the chief minister has to be consulted. However, in spite of this the chief minister has recommended certain names to the governor. This action of the chief minister is based on an interpretation of Article 105 of the Constitution (similar to Article 48) which provides that the governor, in the performance of his functions shall act in accordance with the advice of the Cabinet or the chief minister. It is said that since the Supreme Court has already decided that the president while "appointing" judges, is to act on the advice of prime minister, similarly the governor should also act on the advice of the chief minister while being "consulted" under Article 193. In my view, however, this is not a fair reading of the constitutional provisions. Under Article 193 the governor is only to be "consulted" and is not required to perform any act of the appointment of judges. The consultation itself is not an act which would require the chief minister's advice. It appears that the framers of the constitution desired no political influence of the provincial government in the judges' appointment. I have examined the appointment process in some foreign countries as well. In UK, for example, the process for appointment of High Court judges is more transparent, additional stakeholders involves consultation between a judicial appointments group, the lord chancellor, judges of the House of Lords, Courts of appeal and High Courts, chairman of the Bar, circuit leaders as well as other consultees. The prime minister then recommends judges out of the list prepared through such consultation and the Queen appoints such recommended judges. In US, the process is more democratic and a person who is nominated as Supreme Court judge by the US president has to go through a gruelling process of due diligence before a Senate Committee in which anyone from public can question the nominee on anything, from his personal conduct to his views and past decisions. Other countries too are following an open and transparent process for the appointment of the judges. Does Pakistan too require any change in its appointment procedures. One could argue that the existing system works because after all eminent judges like Justice Cornelius and Justice Kayani amongst others have been appointed through the same process. The leadership of PPP and PML-N, however, did not think so and when the two leaders Benazir Bhutto and Nawaz Sharif were in exile and out of power during Musharraf's regime they too debated the issue of how one can device a process through which independent judges can be appointed without influence of any political parties. The two leaders came up with the solution which was reaffirmed in the Charter of Democracy (COD) signed by them. This charter provides that "reaffirming our commitment to an independent judiciary" a commission shall be constituted consisting of a chairman who shall be a chief justice (who has never previously taken oath under the PCO), chief justice of the concerned provinces (who have not taken oath under the PCO), vice chairman's of Pakistan and Provincial Bar Associations, presidents of Supreme Court and High Court Bar Associations, federal minister for law and attorney general. This commission would then forward a panel of three names for each vacancy to the prime minister who shall then forward one name out of these for confirmation to the Parliamentary Committee for confirmation of the nomination through transparent public hearing process. What is proposed in the charter, if applied to future appointments of judges can improve the process and allow participation of the people within the judiciary as well. Instead of fighting amongst themselves why should not all parties act according to the charter and amend the process of appointment of judges in the constitution. This will certainly ensure greater democracy in the appointment of judges and meet the aspirations of the people. Perhaps for Pakistan this is the best solution because true judicial independence can only be achieved if there is least involvement from political figureheads and maximum transparency. The sad part is that once in government no one is willing to fulfil the promises made when out of office. The Parliamentary Committee on Constitutional Reform is deliberating and I am surprised that so far none of the signatories to the charter have raised this issue. charter is like a promise to the people and the parties owe it to public to debate this issue as well before the Parliamentary Committee. To have an independent judiciary one needs judges of a certain minimum calibre. I would suggest that any constitutional amendment for appointment of judges should also clearly lay down the criteria for appointment of judges. The recommended judges must have personal qualities of integrity (which can be ascertained from their history), fairness, understanding of people and society, maturity and sound temperament, courtesy and humanity and a commitment to public service. The wish of the people is to see that persons with these qualities, irrespective of their political affiliations, are appointed to the judiciary. This judiciary belongs to the people and we must cherish and respect it. For the immediate future, unfortunately, it appears that any constitutional amendments in the appointment process are unlikely to take place immediately. Given the current scenario where all political parties through their chief minister's and governors are trying to have their own persons appointed, the burden once again falls on the shoulders of Chief Justice Iftikhar Muhammad Chaudhry, to play a positive role and ensure that the vacancies of the High Court judges are filled by men and women who can uphold the rule of law in this country without fear or favour. The writer is an advocate of the Supreme Court of Pakistan E-mail: mnz@nexlinx.net.pk