THE PROCESS OF JUDICIAL APPOINTMENTS IN PAKISTAN: FROM HISTORY TO THE PRESENT.

Starting with the words of the Roman poet Juvenal, "Quis custodiet ipsos custodes?" (Who will guard the guards?), whether you’re a curious citizen, an avid follower of current affairs, or someone seeking a deeper understanding of Pakistan’s justice system, the process of appointing judges to the highest courts is a topic worth exploring. These appointments are not just about filling vacant seats—they are about shaping the judiciary, upholding the rule of law, and safeguarding the independence of one of the most vital institutions in a democracy.

How are judges appointed to Pakistan’s highest courts, and what factors truly shape these important decisions? What influence do reforms, constitutional amendments, and figures like the Chief Justice and the President have on the process? Let’s take a closer look at how judicial appointments in Pakistan have evolved over time, and the significant impact they have on the independence of our judiciary.

The process of appointing judges is fundamental to ensuring a strong and independent judiciary, a cornerstone of any democratic system. Every country has its own approach to selecting judges for its higher courts, and these methods often reflect the nation’s legal customs and societal values. In Pakistan, the Constitution of 1973 sets out the procedure for appointing judges to the Supreme Court and High Courts under Articles 177 and 193, respectively. According to these provisions, the President is required to make judicial appointments "after consultation" with key figures such as the Chief Justice of Pakistan, the Chief Justice of the relevant High Court, and the provincial Governor.

However, the term "consultation" has long been a subject of debate. What does it really mean? Does it imply a mutual agreement, or is it merely a formal exchange of views? Furthermore, who holds the ultimate authority in making these critical decisions? While these questions have been discussed in private circles for decades, it wasn’t until the landmark Al Jehad Trust case that the issue of judicial appointments was thrust into the public eye. This case brought to light the complexities surrounding the power dynamics of judicial appointments, sparking widespread discussions on the independence of the judiciary and the checks and balances involved. This case set the stage for ongoing debates about the balance of power between the executive and the judiciary, and the role of the Chief Justice in ensuring that the appointment process remains transparent and fair.

AL JEHAD TRUST CASE

The Al-Jehad Trust case, also known as the Judges' case (PLD 1996 SC 324) was a landmark moment in Pakistan’s legal history, delivered in 1996 by a five-member bench of the Supreme Court. This case established the principle of judicial supremacy in the process of appointing judges, forever changing the landscape of judicial appointments in the country.

The case began when a public interest organization raised concerns over the validity of certain judicial appointments made by the President. The petitioners argued that these appointments had been made in disregard of the advice of senior judges, thus violating constitutional provisions and jeopardizing the independence of the judiciary. They claimed that the appointments undermined the principle of separation of powers, where the judiciary must remain free from executive interference.

On the other hand, the government defended its position by asserting that the term "consultation" used in the Constitution was not about seeking approval but merely sharing opinions. According to the government, this gave the President the discretion to decide who was fit for the judicial role, essentially granting the executive branch more control over judicial appointments.

KEY POINTS OF THE CASE

The Supreme Court of Pakistan delivered a unanimous judgment in the Al-Jehad Trust case on March 24, 1996, addressing key issues surrounding the appointment of judges. Here are the highlights of the decision:

1. Judicial appointments must be transparent to uphold public trust in the judiciary's independence.

2. The method of appointing judges is closely tied to judicial independence and cannot be separated from it.

3. The phrase "after consultation" in Articles 177 and 193 means the process must be meaningful, consensus-driven, and fair, ensuring active participation by all consultees and the executive.

4. Constitutional conventions play a role in interpreting provisions of the Constitution.

5. An Acting Chief Justice cannot fulfill the mandatory consultation requirements, except when the permanent Chief Justice cannot resume duties within 90 days due to prolonged illness.

6. The opinions of the Chief Justice of Pakistan and the relevant High Court Chief Justice about a candidate's suitability carry significant weight and should only be overridden with well-documented, compelling reasons.

7. Appointments made without proper consultation, as outlined in the Constitution, are invalid.

8. Appointing a candidate deemed unsuitable by senior judges is a misuse of power under the Constitution.

The Supreme Court's landmark judgment in this case significantly strengthened the judiciary's authority in the appointment process, providing clear guidelines for interpreting Articles 177 and 193 of the Constitution. This decision has become a cornerstone in safeguarding judicial independence and shaping the framework for judicial appointments in Pakistan. The Court made a critical distinction by asserting that the consultation process should not be limited to a mere exchange of opinions. It emphasized the importance of considering the advice of senior judges, particularly the Chief Justice, with serious regard. This ruling marked a decisive shift toward a more independent judiciary, ensuring that judicial appointments are shielded from political influence and preserving the integrity of the judiciary.

JUDICIAL APPOINTMENTS BEFORE THE 18TH AMENDMENT

Before the 18th Amendment to the Constitution of Pakistan, judicial appointments followed a process heavily influenced by the judiciary. The Chief Justice of the Supreme Court would recommend a panel of candidates to the President, who would select one from the panel. Similarly, for High Court appointments, the Chief Justice of the relevant High Court forwarded a panel to the President, routed through the provincial Governor and the Chief Justice of Pakistan.

The Chief Justice of Pakistan and provincial Chief Justices played a central role in this process. The 1996 Judges' Case further limited the President's discretion. The Supreme Court ruled that the President was generally bound by the Chief Justice's recommendations, and any departure from these recommendations required justifiable reasons that were subject to judicial review.

This process significantly emphasized judicial input, leaving the executive with minimal influence over judicial appointments.

THE 18TH AMENDMENT

The 18th Amendment, passed in 2010, was a significant legislative reform aimed at balancing power and reducing the judiciary's unchecked authority in the judicial appointment process. It wasn’t just about judicial appointments; the amendment touched on several key areas, with the judiciary’s role being one of the most notable subjects of change.

Under the new framework, the process for appointing judges to superior courts was overhauled. It was now to be handled by two distinct bodies: the Judicial Commission (JC) and the Parliamentary Committee (PC).

The Judicial Commission, headed by the Chief Justice of Pakistan, became the first forum in this process. Along with the Chief Justice, it included two senior Supreme Court judges, two Chief Justices from the High Courts, the Attorney General, law ministers from both federal and provincial levels, and representatives from the Federal and Provincial Bar Councils. Together, they would evaluate and nominate judges for judicial vacancies.

Once the nominations were made, they were sent to the second forum, the Parliamentary Committee. This committee, made up of eight members—four from the National Assembly and four from the Senate—was split equally between the Treasury and Opposition benches. The committee’s role was to confirm the nominations forwarded by the Judicial Commission.

After receiving the confirmation from the Parliamentary Committee, the final list of nominees would be sent to the President, through the Prime Minister, for assent and appointment.

THE 19TH AMENDMENT

The 19th Amendment, passed in response to the challenges faced by the 18th Amendment, introduced important modifications to the judicial appointment process, refining the balance of power between the judiciary and Parliament. The Supreme Court's recommendations led to two key changes.

First, the composition of the Judicial Commission (JC) was altered to increase the number of senior Supreme Court judges from two to four, strengthening the judiciary's role in the nomination process. Second, a new provision required the Parliamentary Committee (PC) to provide detailed reasons if it rejected a nomination from the JC. Should the PC's decision be in disagreement with the JC, the matter would be referred back to the Commission for reconsideration. If the JC upheld its original recommendation, it would become final, with the President bound to make the appointment.

JUDICAL COMMISSION OF PAKISTAN.

The Judicial Commission of Pakistan (JCP) was established under Article 175-A of the Constitution through the 18th Amendment in 2010, marking a significant moment in Pakistan's constitutional history. It was created to address long-standing concerns regarding political influence and executive dominance in judicial appointments. The JCP aims to ensure transparency, meritocracy, and independence in the process of appointing judges to Pakistan's superior courts, including the Supreme Court, Federal Shariat Court, and High Courts.

The commission is a multi-stakeholder body, with members from the judiciary, legal fraternity, and the executive, ensuring a balanced approach in decision-making. Its role is critical in maintaining the integrity and efficiency of the legal process, promoting judicial independence, and upholding the rule of law in Pakistan. The creation of the JCP reflects a concerted effort to align judicial appointments with international standards, strengthening public confidence in the judiciary and ensuring that appointments are based on merit, fairness, and competence.

CURRENT STRUCTURE OF THE JUDICIAL COMMISSION

Following the recent passage of the 26th Amendment, the structure of the Judicial Commission has undergone significant changes compared to its composition after the 18th Amendment. The composition of the Judicial Commission is now as follows:

• Chief Justice of Pakistan: The chairman of the JCP 

• Three senior Supreme Court justices: The most senior three justices of the Supreme Court 

• Senior most constitutional bench justice: The most senior justice of the constitutional bench 

• Federal Minister for Law: A member of the JCP 

• Attorney General for Pakistan: A member of the JCP 

• Two National Assembly members: Two members of the National Assembly, nominated by the Leader of the House 

• Two Senate members: Two members of the Senate, nominated by the Leader of the Opposition 

• Advocate nominated by the Pakistan Bar Council: A two-year advocate nominated by the Pakistan Bar Council 

• Woman or non-Muslim nominated by the Speaker of the National Assembly: A woman or non-Muslim nominated by the Speaker of the National Assembly.

MANDATE AND FUNCTION

The primary responsibility of the JCP is to recommend individuals for appointment as judges of the superior courts—the Supreme Court, high courts, and the Federal Shariat Court. The Commission evaluates candidates based on their legal integrity, and impartiality. Once the JCP finalizes its recommendations, they are forwarded to the Parliamentary Committee on Judges' Appointment for approval.

26^TH AMENDMENT IN THE CONSTITUTION OF PAKISTAN

The 26th Amendment to the Constitution of Pakistan brought notable changes to the judicial appointment process, particularly concerning the Chief Justice of Pakistan (CJP). Under the new system, the CJP is no longer appointed solely based on seniority. Instead, a Special Parliamentary Committee selects the CJP from among the three most senior Supreme Court judges, with the position now having a fixed term of three years. The amendment also restructured the Judicial Commission of Pakistan (JCP), altering its composition to include participation from non-judicial members, such as parliamentarians. Additionally, the JCP is now responsible for conducting annual performance evaluations of High Court judges, with underperformance being referred to the Supreme Judicial Council for further action.

The amendment further introduced the formation of specialized constitutional benches within the Supreme Court to handle constitutional matters. These changes aim to streamline judicial processes and enhance accountability while redefining the balance between the judiciary and the legislature in Pakistan.

After the 26th Amendment to the Constitution of Pakistan, the role of the Judicial Commission of Pakistan (JCP) has been revised to enhance accountability, transparency, and efficiency in the judicial system. The amendments have introduced several key responsibilities and changes in the structure and functioning of the JCP, fundamentally altering its operations in the judicial appointment process and overall governance. Below is a detailed explanation of the JCP's role following the 26th Amendment:

1. JUDICIAL APPOINTMENTS

The core function of the JCP continues to be the appointment of judges to the superior courts of Pakistan, including the Supreme Court, High Courts, and other courts. However, the 26th Amendment has restructured the judicial appointment process, especially with respect to the Chief Justice of Pakistan (CJP). While the JCP remains involved in recommending judges for the judiciary, the process has been modified to provide a more balanced approach between the judiciary and the legislature.

• APPOINTMENT OF CHIEF JUSTICE: The process for the appointment of the CJP has been altered. The CJP is now selected by a Special Parliamentary Committee from the three most senior judges of the Supreme Court, instead of being automatically appointed based on seniority. This change also introduced a fixed term of three years for the position of CJP.

2. PERFORMANCE EVALUATIONS OF JUDGES

One of the major new responsibilities of the JCP under the 26th Amendment is its role in conducting annual performance evaluations of High Court judges. This function aims to ensure that judges remain competent and capable throughout their tenure.

If a judge’s performance is found to be unsatisfactory, the matter can be referred to the Supreme Judicial Council (SJC) for further action. This brings an element of judicial accountability that was not as pronounced before the amendment, ensuring that judges maintain a high standard of legal practice and ethics.

3. ADVISORY ROLE AND REFORM RECOMMENDATIONS

In addition to its role in judicial appointments and evaluations, the JCP is empowered to offer recommendations and advice on other judicial reforms, including changes to the judicial structure, procedure, and functioning of the courts. The commission is expected to actively participate in discussions on improving the overall functioning of the judiciary.

• The JCP can also advise the government on legal reforms and the need for changes in the judicial system, making it an important body for ensuring that the legal and judicial systems evolve to meet the needs of a modern democracy.

• Its advisory role extends to guiding the development of constitutional and procedural reforms that can improve the efficiency and effectiveness of Pakistan's judiciary.

4. FORMATION OF CONSTITUTIONAL BENCHES

Another major development under the 26th Amendment is the creation of specialized constitutional benches within the Supreme Court to handle cases related to constitutional matters. This reform aims to improve the specialization of judges dealing with constitutional issues, ensuring that these cases are adjudicated by judges with the necessary expertise.

The JCP plays a role in overseeing the selection and assignment of judges to these specialized benches, helping streamline the adjudication of complex constitutional cases and ensuring a more focused approach to interpreting the Constitution.

In a nutshell, Pakistan's judicial appointment process has undergone significant changes, particularly through the Al-Jehad Trust case, the 18th and 19th Amendments, and the 26th Amendment. These reforms have shifted the balance of power between the judiciary and the executive, with the creation of the Judicial Commission of Pakistan (JCP) enhancing transparency and merit-based appointments. The 18th Amendment established a two-forum process, while the 19th Amendment fine-tuned the role of the JCP. The 26th Amendment further revised the JCP's structure, introduced a fixed term for the Chief Justice, and mandated performance evaluations for judges. These reforms aim to safeguard judicial independence while ensuring accountability, yet the long-term effectiveness and balance of these changes remain open to debate.