Each to their own role

Separation of powers is an established doctrine of constitutional law that assures balance and harmony in governance, by empowering all three branches/organs of government – the executive, legislature, and the judiciary – by giving each branch certain powers for check and balance on the other branches. And all three organs are expected to ensure their role within the framework without interfering in each other’s domain.

The constitution of Pakistan, being the supreme law of the land, provides for parliamentary democracy in Pakistan. It also lays down a complete scheme to establish the judicial system in the country including the method of appointment of judges to the superior court as well as the qualification criteria. Back in 2010, the then parliament introduced a major shift in the mechanism for the appointment of judges and established the Judicial Commission of Pakistan (JCP) through the 18th and 19th amendments to the constitution of Pakistan. The primary duty of the JCP under Article 175(a) was to recommend the appointments of judges in the superior courts, including the high courts and the Supreme Court of Pakistan. The Supreme Court of Pakistan would consist of the chief justice of Pakistan and a number of other judges, as determined by parliament.

The Judicial Commission of Pakistan has recently been under a spotlight in the media, primarily because of a demand from within (the Supreme Court) to devise a criterion to choose suitable candidates for appointments from high courts to the Supreme Court of Pakistan through rules of procedure; emphasis inter alia has been much upon the seniority of the chief justices of the respective high courts for appointment as Supreme Court judges. The correspondence/letters authored by the honourable judge/member of the JCP has been widely circulated on social, electronic and print media. Some bar representatives have also joined the course and are humming the same tunes.

In my humble opinion, there is no doubt that there is an immense need to improve the system of judicial appointments, one that requires it to be more transparent than is currently the case. But publicly airing dirty linen may affect the dignity and prestige of the judiciary, which – most respectfully – has already eroded to a great extent and requires immediate redressal. In addition, a targeted campaign by few partisan bar office holders and a faction of journalists and political commentators against a few judges is highly condemnable. A sense of responsibility must be demonstrated from those involved in such absurd campaigns.

Having said so, in my opinion there is a need to look into the referred suggestion to consider the chief justices of the provincial high courts on the basis of seniority. I'm afraid that a plain reading of the law reveals that such demand or suggestion is not in consonance with the constitution. The constitution envisages a wholesome scheme with regard to the manner and qualifications for the appointment of judges in the superior courts and that includes the qualifications for the judges of the apex court. Under the constitution, any person can be appointed as a judge of the Supreme Court if s/he is a citizen of Pakistan and has served as a judge of any high court in Pakistan for a period of five years or if s/he has been practising for not less than fifteen years as an advocate of a high court (including a high court which existed in Pakistan at any time before the commencing day). The constitution also provides for the appointment of temporary judges and ad-hoc judges in the apex court under articles 181 & 182 of the constitution, respectively. Therefore, the criteria for such appointments is the same.

A plain reading of the above provisions of the constitution clearly reflects that seniority does not find mention therein. Now, the question arises whether or not the Judicial Commission of Pakistan is empowered to devise rules of procedure to provide criteria for such appointments based inter alia upon the principle of seniority. The answer to that is in a definite negative.

In my view, the standard set up by the constitution for appointments in the apex court itself was 'fitness' and not 'seniority cum fitness'. That is why only 15 years of practice in the high court has been deemed suitable enough for appointment as a judge in the apex court and a five-year period has been considered enough to appoint a judge of high court in the Supreme Court. When the constitution provides qualification or criteria for appointments in the apex court, could the JCP envisage any standard otherwise through devising rules of procedure? Will that not amount to entering into the domain of the legislature?

I am certainly of the opinion that the power to devise qualifications for the appointments in the superior courts lies only with parliament, which is empowered to bring constitutional amendments as it did back in 2010. Parliament, through a constitutional amendment, decided that the senior-most judge of a high court can be appointed as chief justice in the high court. Most respectfully, devising criteria is not the domain of the judiciary; this right lies only with parliament.

In this, I am guided by a wonderful opening by Hon’ble Justice Syed Mansur Ali Shah in his dissenting note authored in Civil Review Petition No 292/2021 in the following terms: “Unless we protect democracy, democracy cannot protect us”. One of the foundations of democracy is a legislature elected freely and periodically by the people. This dissent recognizes the central role of the legislature and the principle of separation of powers in a constitutional democracy. Justice McLachlin has rightly said that in democracies, “the elected legislators, the executive and the courts all have their role to play. Each must play that role in a spirit of profound respect for the other. We are not adversaries. We are all in the justice business, together.”

Separation of powers is the backbone of a constitutional system. The legislature, the executive and the judiciary have no authority beyond that granted to them under the constitution. None of them is omnipotent. And perhaps it will be apt to say that if the rule of seniority was followed strictly in the past, the nation would have not been able to have a quality adjudicator like the author of a few letters in the judicial arena.

The writer is an advocate of the Supreme Court.