Govt willing to review 19th Amendment for merit-based appointment of judges

ISLAMABAD: The PTI government is not satisfied with the present system of appointing judges of the superior judiciary but instead of reverting to the old system, it wants to evolve a merit-based transparent process to induct the best available candidates as high court justices.

A key aide to Prime Minister Imran Khan confided to The News that the present appointment process, which was introduced after the passage of the 19th amendment, is selection-based rather than merit-based. “We are willing to discuss with the opposition changes in the 19th Amendment that would make the judges’ appointment process merit-based,” the source said, adding that the opposition wanted to revert to the old system that was also selection-based.

The source said that there have been discussions within the PTI on the issue and even the prime minister wanted a system where high court judges are appointed through an open and fair competition and in a transparent manner. The aide explained that those lawyers who fulfil the minimum criteria and are interested in becoming high court judges should appear in a competitive exam and, if successful, be interviewed by a panel which could comprise judges, parliamentarians and others.

The source pointed out that even for ordinary jobs there is a merit-based recruitment process but in the case of judges, appointments are made at discretion and on a selection basis. This process allows incompetent and compromised persons to make their way into the judiciary.

The pre-18th Amendment process of appointing judges gave the judiciary dominance in regulating the appointment of judges. The process was lacking all the necessary checks and balances. The 18th Amendment attempted to change the system by giving parliament a role in judicial appointments by establishing two bodies: the Judicial Commission and the Parliamentary Committee.

However, following the Supreme Court’s intervention, parliament passed the 19th amendment to bring in the present process of judges’ appointment. In theory, this involves a parliamentary body but it is more of a ritual as the judiciary has a dominant say in the appointment of judges. The intention of the 18th Amendment was to give parliament a role in the appointment of judges. However, even that system was not merit-based and transparent, the source said.

The pre-18th amendment process of judicial appointments involved the Chief Justice of the Supreme Court recommending a panel to the president, who selected a suitable candidate from that panel. Similarly, for the appointment of judges of the High Courts, the chief justice of the concerned High Court forwarded a panel to the President which was channelled through the governor of the province and the Chief Justice of Pakistan. The pivotal role in the process was that of the Chief Justice of Pakistan as well as the provincial chief justices.

The 18th Amendment introduced a system where appointment to the superior courts was to be processed through two forums. The first was the Judicial Commission (JC), headed by the Chief Justice of Pakistan and comprising senior judges of the Supreme Court and high courts, the law minister etc. The JC was to nominate judges for each vacancy. The nominations were then to be forwarded to the second forum, the Parliamentary Committee for confirmation. The Committee would consist of four members of the National Assembly and four of the Senate, split equally between the Treasury and Opposition Benches.

The 18th Amendment was challenged before the Supreme Court on the grounds that it compromised the independence of the judiciary. The Supreme Court in its decision referred the matter to parliament with advice on how to modify the 18th Amendment to conform it with the Constitution. As per the SC’s advice, parliament passed the 19th Amendment which again gave judges the upper hand in appointing judges of their choice.