Daily Times Editorial Dec 4, 2013

Appointment of superior courts’ judges The Senate on Monday engaged with the issue of the procedure for appointing superior courts’ judges. The Senators’ complaint, which echoed across the aisles, was that the procedure as laid down by the 18th Amendment to the Constitution had envisaged parliamentary oversight of the appointment of superior court judges in order to move away from the long standing convention that followed a non-transparent procedure limited to the judiciary, first and foremost, and at best the executive. Parliament previously had no role in the matter. Essentially the procedure as it now stands envisages nominees for appointment as superior courts’ judges to be put forward by the Judicial Commission headed by the Chief Justice of Pakistan and comprising, much to the Senators’ chagrin, six out of its nine members from the judiciary. These nominees are then vetted by a parliamentary committee consisting of four members each from the treasury and opposition benches from both houses. The parliamentary committee is afforded 14 days to record in writing its objection to any nominee by a three-fourths majority, failing which the nominee is deemed to have been appointed. Not only is this restrictive of the parliamentary committee’s ability to properly vet the nominees, the Senators say in practice none of the objections or reservations of the parliamentary committee are given any weight by the judicial commission. The Senators’ lament is that in practice the parliamentary committee has become ‘toothless’, and if it has no efficacy, either it should be abolished, or parliament should meet in joint session to enact a new law to correct the perceived imbalance between the judicial and parliamentary stakeholders in the appointments process. The 18th Amendment was the most comprehensive and ambitious undertaking to correct the anomalies that had accumulated in the supreme law of the land, largely because of the tinkering with it by military dictators over the decades. While the process of forging consensus in parliament on the amendment was a lengthy and exhausting exercise that yielded many good things, it failed to completely eliminate or repeal some clauses introduced by General Ziaul Haq to promote his so-called Islamisation agenda, a euphemism for consolidating his grip on power. Also, its proposed procedure for introducing parliamentary oversight for appointments to the superior judiciary did not sit well with the judiciary, which insisted on changes. The previous government acceded to the judiciary’s demands and enacted the 19th amendment to satisfy the judiciary. However, in practice, the Senators complain, parliamentary oversight exists more in the breach. While this may partly be ascribed to the weightage available to the judiciary in the judicial commission versus the parliamentary committee, in practice the procedure has not managed to introduce a credible oversight in the matter by parliament. With a new parliament elected in May 2013, the lawmakers seem inclined to revisit the appointments issue to see if parliamentary oversight can be improved, if necessary by enacting a new law to ensure that the judiciary does not become judge and jury in its own cause. The first casualty of the non-transparent procedure before the 18th amendment was often merit. That may still be the case or at least appear to be the case, until and unless the procedure is made more transparent, above board, and with the necessary checks and balances to ensure the members of the superior judiciary are appointed in a credible manner that enjoys the sanction of both the judiciary and parliament, and thereby the acceptability and respect members of the superior judiciary deserve. Along with a new parliament, a change is also imminent at the top of the judicial edifice, with incumbent Chief Justice Iftikhar Mohammad Chaudhry due to retire in a matter of days, and his successor Justice Tasadduq Hussain Gillani having expressed his desire to see a healthy and appropriate relationship and division of powers amongst the three pillars of the state, i.e. the judiciary, parliament and the executive. This trichotomy of power has come under great strain in recent years because of the perceived overweening and hyper interventionist role of the superior judiciary since its restoration in 2009, with liberal use of suo motu and contempt powers, which have at times rendered the superior judiciary controversial. Given the balanced views of Justice Gillani, it can be hoped that the era of hyper activism characteristic of the last five years will seamlessly give way to a more balanced role, keeping the time honoured principle of judicial restraint to the fore to ensure all state institutions function within their own purview, without conflict or friction.