Judicial appointments
by
Javed Hafiz |
Merit and transparency should be the criterion
The Supreme Court of Pakistan has been breathing fire, literally, of late. The other day it sent a senior bureaucrat to jail straight from the court room. Ahmad Riaz Sheikh, Additional Director-General of the Federal Investigation Agency (FIA), had been removed from service on corruption charges in 2002. The present government, using the cover of National Reconciliation Ordinance (NRO), not only reinstated but also promoted him.
That sheikh had been promoted after the land mark judgment on NRO, infuriated the apex court. It was a clear message to the executive: judicial decisions had to be implemented in letter and spirit. While entering the police vehicle to go to jail, Shiekh confirmed his loyalty to Zardari. No wonder, the present tussle between the executive and judiciary is being seen here as an impending clash of judiciary with Zardari.
Sheikh’s wife is a provincial MP of the ruling People’s Party from a Lahore constituency. There does appear to be some sort of nexus between politics and corruption, at least in the developing countries. This bizarre episode also confirms the general perception here that quite a few corruption trails tend to lead to the presidency.
Higher judiciary in Pakistan is now in the limelight like never before. In the past as well, some of its decisions had long term implications for the national political scene. Judgment by Chief Justice Munir in 1950s to uphold Governor General Ghulam Mohammed’s dissolution of the parliament was a huge blow to a nascent democracy. Similarly the decision to execute Zulfikar Ali Bhutto created splits in the national fabric. Judicial decisions today seem to impact more on our daily lives. Had Chief Justice Dogar not quashed the graduation condition for becoming a PM, Zardari would not be the president today. Those visiting Lahore lately would have seen the demolition of upper floors of some high rise buildings at Kalema Chok. This is being done on the orders of the court as the buildings’ heights violated permitted ceiling.
The Supreme and High Court judges are one of the highest paid civil servants in Pakistan. Their pay rises were considered essential to provide them financial security and obviate any chances of corruption. Their powerful offices, high salaries and media focus have made the judicial appointments very important. When Nawaz Sharif recently threw a spanner into the 18th amendment on the mode of judicial appointments, he was roundly criticised in the media for taking a last minute U turn and obstructing a good development.
However, the appointment of judges was too important a matter to be left to any chance. Sharif insisted that the proposed judicial commission for judges’ appointments should include more judges than government representatives. Historically, the governments have tried to manipulate judicial appointments to their advantage.
The Charter of Democracy (2006) signed by Benazir and Sharif proposed a mix of judicial commission and parliamentary scrutiny for appointment of judges. Qazi Anwer, the President of Pakistan Bar Association, recently created quite a storm by saying that the judges should not be appointed in consultation with the robbers and smugglers sitting in parliament.
Ideally, the judges should be hundred and one per cent independent, honest and neutral. Justice Mian Abdul Rashid, the first Chief Justice of Pakistan, who had the privilege of administering oath to Mohammad Ali Jinnah as Governor General, was one such judge. He had refused a dinner invitation from Prime Minister Liaqat Ali Khan because the government of Pakistan was a party to a number of cases before him. The others that could be counted in that league were Justice Shabbir, Kiyani and Cornelius. Justice Cornelius had stayed for decades in a hotel room in Lahore. As a bachelor, he did not need more accommodation.
His integrity remains unquestioned till today. The modes of appointment of high judiciary in Pakistan have varied. At one time the executive head had a great say in it. Now that prerogative has shifted to the Chief Justice of Pakistan. The hybrid proposed in the coming 18th amendment would be a third way. The first two methods are flawed as appointment of judges should not be entrusted to one person. The third method likely to be approved soon is more collegial and therefore an improvement. However, it is too far from perfect. The judges and the ministers on the judicial commission as well as the parliamentarians will either pull in different directions or reach agreements to induct their favourites. So what is the way out?
In my opinion, the judicial commission should be comprised of retired judges of the Supreme and High Courts, solely selected on the basis of seniority. It should be headed by the incumbent chief justice and decisions should be by at least two thirds majority. Half of the superior judiciary should be selected from the district and session judges through competitive examinations.
Lawyers to be selected as judges should have no political affiliations and must enjoy wide respect in the legal community. In any case judicial appointments should be done in a collegial, based on merit and transparency.
(Javed Hafiz is Pakistan’s former ambassador to the Sultanate) |
Other comment for Javed Hafiz
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