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Messy yet workable: The Raza Rabbani framework for judicial appointments – by Cyril Almeida

The Rabbani committee may actually have set up a rather workable framework for judicial appointments. –Photo by APP

The Raza Rabbani court
By Cyril Almeida

Let’s walk through the process for appointing superior court judges devised by Raza Rabbani’s Parliamentary Committee on Constitutional Reforms (PCCR). A vacancy on the Supreme Court (SC) arises following the retirement of one of its 17 permanent justices.

Somewhere, six men with grave expressions sit down to decide who they will recommend for the job. Seated at the table are the chief justice (CJ) of Pakistan, the two senior-most judges of the SC after the CJ, the attorney general, the federal law minister and a senior advocate of the Pakistan Bar Council (PBC).

The nomination will be decided by a simple majority, i.e. four votes.

See a problem? Do the math. There are three people from one institution, the SC; two from the government of the day; and a practising lawyer in the good books of the PBC.

The SC wants a particular judge; the government another (sound familiar?) — now what? Mr Lawyer-from-the-PBC becomes kingmaker, or judge-maker, as it were. He can either vote with the three justices, rendering their candidate the nominee for the SC slot, or he can vote with the government representatives and effectively block a nomination.

Why should this be? Why should our superior judiciary be shaped by some lawyer with a swing vote? What legal or constitutional philosophy demands this?

Work through the suggested appointment process further and you’ll see just how exalted Mr Lawyer’s position is.

The recommendation of the judicial commission — the one in which Mr Lawyer holds the crucial swing vote — will have to be approved by a parliamentary committee. Aha, you say, there you go, Mr Lawyer’s decisive vote can be thwarted at this stage. But Raza Rabbani and his elves have done the opposite.

The parliamentary committee which must approve the judicial commission’s nomination is to consist of eight members. Here’s the problem: to reject a recommendation, six of the eight members must vote to do so (a staggering 75 per cent; the constitution can be amended by a mere, in comparison, two-thirds of parliament).

More dauntingly, the committee will be split evenly between the government and opposition and it will have to reject a nominee within 14 days. Six out of eight members of a committee divided between the government and the opposition agreeing on anything in 14 days? You must be kidding.

So, in many cases, Mr Lawyer could emerge the real judge-maker.

There is a further problem here. Why should the people, via their elected representatives, be constitutionally marginalised in the process that determines which men will don black robes and decide what the law of the land is? Is that really what a democracy should aspire to, the law interpreted by a thoroughly unrepresentative institution?

Rabbani and his elves have, of course, not screwed up. Set against what is best from a structural, and perhaps even democratic, perspective are two factors: the weight of history and the politics of the present.

Ideally, you would want your judiciary to be chosen by those you elected to represent you. That sounds democratic: why would you want someone who isn’t accountable to you to select who determines what law you are held accountable to?

But the problem is the elected representatives. They have so routinely tried to stuff the judiciary with their favourites, often with little regard for merit or even a candidate’s basic legal abilities, that it is against the elected representatives that the system needs to be defended. So rather than having a more democratic court, the people must accept a less democratic court.

And there is also some logic to giving Mr Lawyer the swing vote on the judicial commission, even if it isn’t very democratic.

In a system of checks and balances/trichotomy of powers/whatever you want to call it, the executive always has a tendency to try and dominate the judiciary. It’s a structural thing and if you were the executive, you would do it, too.

Nobody likes having someone tell them what they cannot do. That is the case with the powerful executive, too: it tries to avoid being told what it can’t do by stuffing the judiciary with friendly faces.

So when trying to design a durable, democratic system you want to avoid giving all the power to appoint judges to the executive. But neither can you hand over all that power to the judiciary because that would make the judiciary an insular, virtually unaccountable institution.

What do you do? You introduce a third player to break an impasse whenever it occurs. And Mr Lawyer-from-the-PBC may actually be a relatively decent impasse-breaker.

The Pakistan Bar Council is a statutory body that issues lawyers their licenses and regulates the profession, including imposing a code of conduct. A senior advocate nominated by the PBC is bound to know, or can easily find out, the bona fides and abilities of any candidate because the candidates are almost always going to be judges or high-profile lawyers and hence known to the PBC or its representative.

There is, of course, the possibility that Mr Lawyer may not vote with his conscience. Would he really want to cross three justices of the SC, including the chief justice, when he’s likely to have some business before them soon? Or would he be able to resist government pressure to side with it and block a nomination it doesn’t like by splitting the vote 3-3 on the judicial commission?

(Already the present government stands charged with trying to increase its influence in the PBC and all subsequent governments will have a similar incentive to shower attention on that body.)

Yet, in practice, Mr Lawyer is likely to be a by-the-book guy. Potentially caught in the crosswinds of two mighty institutions, you would do the same too: focus on the qualifications and professional abilities of a candidate and ignore thorny issues about a candidate’s political, ideological and institutional persuasions. A single player with no backing from any major institution is always likely to act with caution and avoid controversy.

So the Rabbani committee may actually have set up a rather workable framework for judicial appointments.

It certainly isn’t the most, or even a very, democratic way of appointing judges but it does have the potential to generate spin-offs that are democracy-enhancing: the less the judiciary and the executive clash, the smaller the threat they collectively pose to democratic continuity.

Tailpiece: Rabbani has suggested that the PCCR’s proposals aren’t final and may be changed after canvassing opinion from the legal community. Whatever happens, the chief justice should not be given the casting vote in the event of a 3-3 tie in the judicial commission.

The three SC judges are likely to always vote en bloc (would you vote against your boss?) thus all but guaranteeing three of the six votes on the judicial commission. Give the chief justice the tie-breaking/casting vote, too, and it would amount to letting the SC decide for itself who it will nominate to the bench. A hermetically sealed judiciary of that sort would be contrary to the democratic project.

The beauty of the Rabbani system is in its messiness. With neither the judiciary nor the executive dominant over the other, they will have to learn to get along. Isn’t that a central idea of a constitutional democracy?

cyril.a@gmail.com

Source: Dawn, Friday, 05 Mar, 2010

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  • A welcome proposal

    Parliament’s Constitutional Reform Committee has tried to strike a balance between the executive and judicial powers in the appointment of judges in the superior courts, while laying down a detailed procedure in its proposed constitutional amendment. Earlier, the executive enjoyed greater say in this matter. Unfortunately, successive governments attempted to manipulate appointments and elevations in the judiciary to suit their own political purposes, which played havoc with its independence and credibility. Now the pendulum appears to have swung too far the other way. The judiciary, since the 2002 Supreme Court (SC) verdict in this regard, has arrogated to itself the exclusive privilege of appointments and elevations to the SC by making the recommendations of the chief justice binding on the appointing authority, the president. This appears to go beyond the letter and spirit of Article 177 of the Constitution. The committee’s proposal now takes away the power from both the executive and judiciary and reposes it in a bipartisan parliamentary committee, which will be the final approving authority of recommendations made by the proposed judicial commission.

    It is welcome that parliament has proposed the removal of the ambiguity in the appointments procedure, which had led recently to a crisis situation. A negative response from the judiciary on the government’s attempt to follow the principle of seniority forced the government to beat a hasty retreat and then accede to the chief justice’s wishes. This is not a very happy state of affairs. In this atmosphere, reform of the relevant constitutional clauses is absolutely critical for clarity and the principle of the separation of powers.

    By and large the Charter of Democracy’s spirit has been implemented in the proposed reforms, although it has been criticised for compromising on the issue of judges who took oath under a provisional constitutional order (PCO) in their judicial career. It may be argued that insistence on the exclusion of PCO judges from the proposed judicial commission for judicial appointments would have led to another confrontation and upset the existing system. The flexibility and accommodative spirit of democracy allows space for consultation on contentious issues, which has led the Constitutional Reforms Committee to attempt to create a consensus that promises greater transparency and credibility for the appointments process.

    http://dailytimes.com.pk/default.asp?page=2010\03\05\story_5-3-2010_pg3_1

  • A new move on appointing judges

    Legal eye

    Saturday, March 06, 2010
    Babar Sattar

    The writer is a lawyer based in Islamabad.

    The Parliamentary Committee on Constitutional Reforms headed by Senator Raza Rabbani has published its proposal for amending the mechanism for appointing judges to the Superior Courts. The new constitutional mechanism being proposed is commendable for striking an appropriate balance between (i) the formal principles of the Constitution, such as trichotomy, federalism, separation of powers, parliamentary form of democracy and independence of the judiciary, (ii) the functional realities of our justice system and the process of selecting judges that we are presently accustomed to, and (iii) the dictates of transparency, rigour and due process.

    Our present system of judicial appointments is broken, as evident during the mini-crisis over appointment of judges a few weeks ago. Under the existing text of the Constitution and the manner in which the courts have interpreted it, the concept of the executive branch’s “consultation” with the chief justice has come to mean seeking the “consent” of the chief justice. Further, the Al Jihad, Malik Asad Ali and the Supreme Court Bar Association rulings that address the issue of judicial appointments view the chief justice as pater familias (father of the family), whose discretion in selecting and nominating individuals for judicial office is beyond question.

    Conferring the title of pater familias on the chief justice fits right into our social culture of sycophancy and personal patronage, institutional culture of arbitrary discretion and political culture of autocracy. It is unfortunate that our apex court, in all its wisdom, found such an archaic feudal concept of Roman origin (that placed all the members and properties of the household within the exclusive authority of the head of the family and owner of the estate) befitting for the office of chief justice. By holding that the chief justice is under no obligation to solicit the advice of his peers in making judicial nominations and further making his recommendations binding on the executive, we have injected excessive arbitrariness into our judicial appointment mechanism.

    Under the Rabbani formula, it will be a judicial commission comprising the chief justice, two senior-most judges of the Supreme Court, the law minister, the attorney general and a lawyer nominated by the Pakistan Bar Council making judicial nominations for the Superior Courts. In case of nominations to the High Courts, the chief justice and the senior-most judge of the relevant High Court, together with the provincial law minister and a nominee of the provincial bar council will also form part of the judicial commission.

    The judicial commission will recommend one individual for each vacancy by majority vote. In the second stage, the judicial commission will send nominations to an eight-member parliamentary committee that will comprise an equal number of members from the Senate and the National Assembly. The parliamentary committee will only be able to block a nomination made by the judicial commission with a three-fourth majority. If the committee doesn’t cast an up or down vote within 14 days, the nominations will be deemed confirmed and sent to the president for notification, who will have no discretion in the matter.

    The Rabbani Committee deserves compliments for proposing a transparent and deliberative mechanism for judicial appointments. In determining the composition of the judicial commission for the first stage of the appointment process, it seeks to include the right mix of expertise to find and assess judicial nominees, gives the judiciary a predominant voice in the process, but not a veto, and provides representation to the executive and the bar council.

    In a sense, the proposed mechanism assimilates the strength of the present system by endowing the judiciary with the primary responsibility of identifying lawyers with legal acumen and potential for elevation to the bench. But by requiring the judicial members of the commission to take along either the nominee of the bar or the representatives of the executive it ensures that the process will be more consensus-oriented, the judiciary will be unable to bulldoze patently unreasonable nominations and no one individual or institution will have unfettered discretion in selecting judges.

    In the second step of the nomination process, the parliamentary committee will be unable to block nominations of the judicial commission on partisan basis. The threshold for rejection has been kept so high that the mainstream parties will have to come together in a non-partisan manner to block the nominees of the judicial commission. This will probably happen only if the nominations are extremely egregious. Thus, if both mainstream political parties in parliament, together with the federal and provincial government, are of the view that appointing an individual to the bench will be an unmitigated disaster, the parliamentary committee could act as a safety valve.

    The imposition of a stringent timeline on the parliamentary committee for consideration of judicial nominees will discourage the committee from using procedural delay as a negotiating tool with the judicial commission to influence its choice of nominees. In the ultimate resort, the parliamentary committee stage in the judicial appointment process will enhance accountability of the choices made by the judicial commission through disclosure and the glare of publicity that this process will attract.

    There are two sets of criticisms likely against this proposed mechanism. The first is that judicial nominees should not be required to attend public hearings conducted by the parliamentary committee, for such publicity will impinge on the privacy of the nominees and allow members of parliament to settle scores and malign the un-favoured candidates even without the ability to block their elevation. Part of this concern is legitimate, especially in relation to the elevation of serving judges from the High Court to the Supreme Court. In such cases it would be preferable to have in camera proceedings that protect the credibility of the judicial office such candidates continue to hold.

    But in relation to new appointments, such objection is mostly rooted in mistrust of democracy and a conceited view that members of parliament would know no better. There is, however, no reason in principle why nominees to high judicial offices should not be publicly questioned about their integrity and their approach to interpreting and implementing the law and the Constitution. The judiciary is neither representative nor accountable to the public, and its members are granted security of tenure and legal protection against personal criticism once in office. It would therefore be preferable for the system to err on the side of caution in selecting who gets to sit on the bench.

    The second criticism is that diluting the authority of chief justice in selecting future judges would undermine judicial independence. This viewpoint springs from a fundamental misconception about judicial independence. Independence of the judiciary is meant to ensure that in performing judicial functions a judge is capable of acting as a neutral arbiter of the law, free from considerations of fear or favour. Such independence is instilled primarily by constitutional security of tenure. Allowing judges to select future judges by no means enhances judicial independence.

    It does not matter who selects judges, so long as the process is transparent, sifts out unworthy candidates and picks individuals on the basis of integrity and merit. To the extent that serving judges are better placed to gauge the integrity and expertise of the lawyers appearing before them in courts, it makes sense to make them an integral part of the evaluation process. But while giving them a decisive say in excluding undesirable elements makes sense, vesting in them the arbitrary discretion over who must be included, does not. The proposed judicial nomination process is a step in the right direction. It distributes the discretionary powers of the chief justice more widely amongst his peers, marks a move away from the concept of pater familias to making the chief first among equals, and introduces a public accountability process that will encourage all stakeholders to support the best candidates for judicial positions.

    Email: sattar@post.harvard.edu
    http://thenews.jang.com.pk/daily_detail.asp?id=227482

  • Lawyers divided on judicial body for judges’ appointment

    * SCBA president says law minister, attorney general’s inclusion in commission ‘undermines’ judiciary’s independence
    * Minallah says formation of commission ‘positive step’

    By Masood Rehman

    ISLAMABAD: Lawyers on Sunday gave differing views about the Parliamentary Committee for Constitutional Reforms’ (PCCR) unanimous decision to amend the articles of the constitution dealing with the appointments of superior courts’ judges, with some
    favouring the decision while others terming it “against the independence of the judiciary”.

    The 26-member PCCR, headed by Senator Raza Rabbani, had unanimously decided on Tuesday to amend articles of the constitution pertaining to the procedure for the appointment of judges to the superior judiciary and recommended a judicial commission, consisting of the chief justice of Pakistan as the chairman; two senior-most judges of the Supreme Court; federal minister for law and justice; attorney general of Pakistan and a senior advocate to be nominated by the Pakistan Bar Council.

    Talking to Daily Times, Supreme Court Bar Association (SCBA) President Qazi Muhammad Anwar said there was no need for such a commission and that the procedure for appointments of judges that had been laid down in the constitution was “appropriate”.

    Undermine: “The formation of a commission that also consists of the law minister and the attorney general, both representatives of the government, is an attempt to undermine the independence of the judiciary,” he said, adding that lawyers would not accept the appointments of judges through such a commission, “which has the representation of politicians”.

    Backing Anwar’s opinions, former SCBA president Hamid Khan said, “We totally oppose such a commission, as it is a conspiracy against the independence of the judiciary. Now when an independent judiciary is in place, a proposal for such a commission is based on mala fide intents. Politicians should not be made part of the process for appointing judges.”

    Positive step: However, Advocate Athar Minallah, a leading figure in the lawyers’ movement, termed the commission a “positive and good step”.

    He said the power to appoint judges could not be vested to a single individual, “as he could commit faults”, adding that participation of parliamentarians, being the elected representatives of people, was imperative in the appointment of judges.

    Former law minister Dr Khalid Ranjha also favoured the decision, terming it a positive step for making the judicial appointments transparent.

    Noted lawyer Fakhruddin G Ebrahim said the role of parliament “must be visible in judicial appointments”.

    http://dailytimes.com.pk/default.asp?page=2010\03\08\story_8-3-2010_pg1_6

  • Judicial appointments —Babar Ayaz

    Justice Sabihuddin Ahmed always held that each judge is supposed to apply his mind independently and should not be influenced, leave alone commanded, by his senior or junior brother judge

    Difference of opinion among
    the people and the institutions of the state are the essence of any democratic polity. In all democratic societies, such issues are discussed publicly and resolved through the ongoing dialogue and discussions process. Arguments in such debates help in evolving a system. In younger democracies like ours, these debates are noisy and, at times, it appears that no synthesis could be evolved by society. If such a breaking point comes, democracy is at a loss. If the differences are resolved peacefully, democracy wins.

    Then there are progressive forces that help in resolving the contradictions in the process of evolving institutions. They play a role in speeding up progress in a society. Countervailing forces create hurdles in the resolution of contradictions. This slows down the inevitable economic progress of society and evolution of the democratic process. Such forces are described in history as reactionaries. At present, these reactionaries are trying to instigate a clash between the institutions of the state, irrespective of the fact that the consequences would be harmful for the growth of the infant democracy of Pakistan. They may have some self-perceived good intentions to bring down individuals who have a tainted past, but either they do not understand that the whole process of the evolution of history is not person-specific, or they are not that simple and well meaning. They fail to accept the fact that the dialectics of history is an interplay between many forces; individuals are but small actors in this grand opera.

    The recent success of the democratic process was the solution of the judges’ elevation and appointment tangle. The judiciary finally had its way as the elected government stepped back from its earlier stand. The latter rightly got flak for first opposing the judiciary’s stance and then conceding it to avoid the inevitable clash. However, the transparent principle of seniority was undermined in this reconciliation. Black coats in the chambers and the bar rooms celebrated their victory. According to the laid down law, they were right, but according to moral principles they were not. It is now being said that a ‘chain of command’ has been set. This reminds me of my late friend Justice Sabihuddin Ahmed who always held that each judge is supposed to apply his mind independently and should not be influenced, leave alone commanded, by his senior or junior brother judge.

    While all the demands of the judiciary were accepted by the prime minister in his meeting with the Chief Justice of Pakistan (CJP), there are no signs of a defusion in the over-zealousness of the judiciary. On the other hand, the political parties have shown further flexibility by dropping the condition inscribed in the Charter of Democracy (CoD) that the commission for the appointment of judges should be headed by a judge who had not taken oath under a PCO. The view taken by all the political parties in this regard is right, as the PCO sins of the judges and their subsequent validation of each military dictator’s takeover were washed away by the heroic struggle led by them. The same judges stood against General Musharraf’s clumsy tactics of sending a reference against the CJP to the Supreme Judicial Council. The CJP’s courageous ‘No’ to the demand made by President General Musharraf to resign made him a hero. Everybody overlooked the charges levied against him in the reference.

    The political government’s assertion is that, in the same spirit, the blood of Benazir Bhutto and 11-year incarceration of Zardari have washed its past sins. Here I would agree with the critics of the government that the nation has given political parties a fresh chance. But so far they have not refrained from committing fresh sins. For that, media criticism and judicial accountability is justified.

    Unfortunately, this does not seem to be the end of the judiciary-executive conflict soap. The struggle for space and power is likely to continue. The next episode would start perhaps next week, when the 18th Amendment to the constitution would be presented by the parliamentary committee. Besides striking down the controversial clauses of the 17th Amendment, the change in the procedure of appointing fresh judges to the superior judiciary would also come up for discussion. The new proposal takes away one man’s discretionary powers for appointing and promoting judges. The proposed nominees’ list would be transferred to a judicial commission and there would be further ratification by a parliamentary committee. Already, many leading lawyers are expressing their views against the composition of the judicial commission and are opposed to having a parliamentary committee. It is thus feared that some litigation-happy lawyers and the ‘usual public interest litigants’ may challenge the amendment. Their plea could be that the proposed amendment is against the basic spirit of the constitution, which guarantees separation of the judiciary and the executive. So, the nation would be once again be subjected to nerve-racking debates on these legal complexities.

    Another parallel sub-plot of the judicial soap would be the case regarding immunity granted to the president in the constitution. In view of the mood of the judiciary, political pundits are not hopeful that the president’s immunity would be held valid by the court. That would lead to the reopening of all cases against Mr Zardari. Those who claim to be his friends say he will contest the cases, but not step down unless he is convicted.

    Terrorist acts and political instability created by legal battles have already derailed the economic progress of the country, which directly affects the common man. Bringing terrorist forces under control may take years. But can our judiciary and executive please call a truce for the sake of the suffering people of this godforsaken country?

    The writer can be reached at ayazbabar@gmail.com

    http://dailytimes.com.pk/default.asp?page=2010\03\09\story_9-3-2010_pg3_5

  • On appointment of judges

    Sunday, March 14, 2010
    Wajihuddin Ahmed

    We have come finally to acquire authentic knowledge of how Superior Court judges are going to be appointed following the 18th Amendment to the Constitution. The resultant public debate will be useful.

    The basic framework was provided by the Charter of Democracy (CoD) signed between the PPP and the PML-N in London in May 2006. In parliamentary democracies, each organ of the state comes up with its own high functionaries. Assembles elect their own speakers or House leaders and the executive appoints its own ministers. Likewise, an effective judiciary gets judges through its own binding recommendations.

    Judges’ appointments in Pakistan were fine-tuned through a judicial process reflected in the Al Jihad, Malik Asad and Supreme Court Bar Association cases of 1996, 1998 and 2002, respectively. However, with the advent of a military adventurer in 1999 and his Provisional Constitution Order (PCO) the higher judiciary was manipulated as never before. Therefore, if the element of executive discretion in judicial appointments was totally taken away, perhaps alliance between generals and judges could be forestalled after military takeovers. Hence, among other reasons, the CoD.

    The CoD mandated a two-tier approach of recommendations by a Judicial Commission and appointments filtering through a parliamentary committee. A little more than a year before the CoD, the British parliament promulgated the Constitutional Reforms Act, 2005, which set up the Judicial Appointments Commission. The commission, having broad legal and intellectual representation, was limited to the selection of initial appointees in the High Court and various tribunals.

    The provision of parliamentary oversight in the CoD seems to have been borrowed from the presidential system. However, it was overlooked that this co-existed, as in the United States, with parliamentary vetting of executive appointees as well. Besides, the CoD, having been the product of a hurried exercise, suffered from various misconceptions. Thus, no identifiable provision for appointment of the chief justice of Pakistan was conceived. Worse still, the Judicial Commission for appointment of Supreme Court judges was to consist of the chief justice of the Supreme Court, the chief justices of the four High Courts, the vice chairman of the Pakistan Bar Council, the president of the Supreme Court Bar Association, the law minister and the attorney general.

    It obviously escaped the attention of those who prepared the text of the CoD that for appointments in the Supreme Court one or more chief justices could themselves be candidates. As for High Court appointments, the Judicial Commission conceived by the CoD contemplated for each of the provinces the added memberships of the vice chairman of the Bar Council and the president of the High Court Bar Association. This term, left to fend for itself, would have provided an edge to the non-judicial component of the commission.

    Finally, the Judicial Commission was to forward no less than three names for each judicial vacancy, out of which, in the prime minister’s discretion, one was to go to the parliamentary committee having an equal number of treasury and non-treasury members. A single consenting opposition member there would be sufficient to confirm the official choice.

    The implementation of the CoD proceeded at a leisurely pace, for various reasons. Lately, however, a visible impetus has been noticed in the deliberations of the Parliamentary Committee on Constitutional Reforms (PCCR). The PCCR has now made public its recommendations for the constitutional change concerning judges’ appointments.

    The legal fraternity may be reluctant in trading off judicial vigilance with a claimed parliamentary oversight. To meet this challenge, in the first place, governmental good faith must take into account petty politics and, in the second, the lawyers’ community should recognise the long-term advantages of institutional checks and balances. People like Iftikhar Chaudhry and Khwaja Sharif cannot last forever, and those of the opposite kind, still lurking in the memory lane, may yet stage a comeback.

    Plainly, there are positive aspects to the PCCR recommendations. The judicial committee, comprising the chief justice of Pakistan, two senior-most Supreme Court judges, the law minister, the attorney general, and a senior lawyer as nominee of the Pakistan Bar Council (in a manner of speaking) is an improvement on the CoD version.

    Similarly, a single nominee from the Judicial Commission for each vacancy, as against three in the CoD, takes away executive and legislative discretion. Another plus is the restriction on the parliamentary committee of having a three-fourths majority for it to reject a nominee of the Judicial Commission–i.e., six out of eight parliamentarians. Then, the ensuing appointment by the president becomes a mere formality.

    Coming to the areas of concern in the PCCR proposals, equal representation of judicial and non-judicial members on the Judicial Commission may not be appropriate. The commission can hardly be termed judicial without the judicial component constituting a majority; more so because, hitherto, making recommendations for judges, as in a parliamentary system, has been the exclusive province of judges. Even the Judicial Commission conceived in the CoD contemplated a judges’ majority.

    The defect may be cured by the induction of two senior Supreme Court judges of the province from where a judge of the Supreme Court or the chief justice of a High Court is to be appointed. Alternatively, the primacy of the chief justice of Pakistan may be translated into his being given a casting vote. As it is, in the existing situation the Pakistan Bar Council lawyer nominee becomes the swing vote.

    Then, a problem may be encountered regarding nominees from the Bar Councils. A Bar Council may be conditioned to make initial nominations within a month of the forthcoming constitutional amendment. The nominations are to last for a year, with due powers of recall, but the nominees’ vacancies are to be filled within a month of occurrence. Similarly, while the parliamentary committee is to process an appointment within two weeks, the Judicial Commission has no such constraints. A period of one month from the date a vacancy occurs, all factors being equal, may be envisaged for it to process its recommendations.

    There seems to be no mention of appointments of acting chief justices and ad hoc judges of the Supreme Court. This may be catered for by providing that the senior-most judge of a superior court shall automatically assume interim charge when an exigency arises. The existing provision for ad hoc appointments in the Supreme Court may be maintained with a proviso that such appointees may not figure in constitutional controversies where politics is concerned.

    Appointments for constitutional and sub-constitutional tribunals are missing from the PCCR suggestions. These appointments may be made at the federal level with the consent of the chief justice of Pakistan and at the provincial levels with like approval of the chief justice concerned.

    A public and parliamentary debate would further elucidate the issues.

    Hopefully, if due attention is accorded to the proposed constitutional dispensation in line with the above, a much needed institutional framework will evolve. That would be difficult, if not impossible, for an adventurer to overturn.

    The writer is a former judge of the Supreme Court. Email: wuddas@ gmail.com

    http://thenews.com.pk/daily_detail.asp?id=229040