Balancing The Scales Of Justice

Balancing The Scales Of Justice
Equitable balance in the scales of justice is not limited to the courtroom, but extends to the mechanism by which judges are appointed, lest the bedrock of our legal system is imperiled. The judicial appointment process is a fundamental element of any democratic system, as it designates those individuals who are charged with the responsibility of construing and enforcing the law. The procedure varies across jurisdictions, with distinct techniques for selecting and scrutinizing Judges for judicial positions in Supreme Courts. In certain systems, the appointment process is subject to significant politicization, which raises apprehensions regarding the impartiality and autonomy of the judiciary.

In Canada, Supreme Court justices are appointed through a merit-based system, with the Prime Minister making the final selection after consulting provincial governments, and legal organizations, and considering public input. An Advisory Board, consisting of legal experts and provincial representatives, reviews applications and provides a shortlist of candidates to the Prime Minister, ensuring a transparent, accountable, and merit-based appointment process.

In Sweden, the judicial appointments system follows an administrative approach. The Judicial Appointments Council (JAC), an independent body with representatives from the judiciary, legal profession, and the public, selects judges, including those for the Supreme Court. Candidates are evaluated based on legal expertise, experience, and personal qualities. The government makes the final appointment after considering the JAC's recommendations, promoting independence, impartiality, and professionalism in the judiciary.

In Scandinavian countries like Norway and Denmark, a merit-based system is employed for appointing Supreme Court justices. Norway uses an independent Judicial Appointments Board that evaluates candidates and provides recommendations to the government. Meanwhile, Denmark has a Judicial Appointments Council, which screens candidates based on professional competence, integrity, and impartiality. Both countries aim to maintain a transparent and accountable appointment process, ensuring a competent and independent judiciary.

In contrast, the process of judicial appointments in the Supreme Court of Pakistan has evolved over the years, marked by historical interventions by the executive and military, which have undermined the judiciary's independence. The current procedure is laid out in the Constitution of Pakistan and the Judicial Commission of Pakistan (JCP) rules. The JCP, consisting of senior judges, the Attorney General, and representatives from the Pakistan Bar Council, evaluates potential candidates for the Supreme Court. The Parliamentary Committee on Judges Appointment (PCJA) then either approves or rejects the JCP's nominations. If approved, the President makes the final appointment.

While the Pakistani system appears to be based on merit, it suffers from several flaws that have led to a lagging judiciary. One significant flaw is the lack of transparency in the appointment process. The JCP's deliberations and criteria for evaluating candidates are not explicitly defined or publicly disclosed, leading to concerns of favoritism and nepotism.

Article 175A of the Constitution of Pakistan

This article outlines the establishment and composition of the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee on Judges Appointment (PCJA). However, it does not explicitly provide guidelines for transparency in the JCP's proceedings, decision-making process, or criteria for evaluating candidates.

The Judicial Commission of Pakistan Rules, 2010

These rules provide details on the functioning of the JCP, such as the nomination process, consultation with stakeholders, and submission of recommendations to the PCJA. However, the rules do not explicitly address transparency concerns, such as making JCP proceedings open to the public or publishing reasons for the JCP's decisions.

The Constitution (Eighteenth Amendment) Act, 2010

The Eighteenth Amendment introduced Article 175A to the Constitution, which reformed the judicial appointment process and established the JCP and PCJA. Although this amendment aimed to create a more transparent and accountable system, it did not provide specific provisions or guidelines to ensure transparency in the process.

Non-disclosure of JCP proceedings

The JCP's meetings and proceedings are not open to the public or the media, and there is no obligation for the JCP to publish the reasons behind their decisions. This lack of transparency has generated skepticism about the fairness of the appointment process and fueled allegations of favoritism and nepotism.

Absence of a formal public consultation process

Unlike other jurisdictions, Pakistan does not have a formal public consultation process for the appointment of Supreme Court judges. This absence of public input and scrutiny further reduces transparency and raises questions about the appointment process's fairness and legitimacy.

Another flaw in the Pakistani system is the dominance of the judiciary in the appointment process. The JCP, primarily comprising judges, may contribute to an insular judiciary that lacks diversity in terms of legal expertise and perspectives.

Composition of the JCP

The JCP comprises the Chief Justice of Pakistan, four senior-most judges of the Supreme Court, a former Chief Justice or former judge of the Supreme Court, the Attorney General, the Federal Minister for Law and Justice, and a representative from the Pakistan Bar Council. As evident, the majority of the JCP members are from the judiciary, granting it significant control over the appointment process.

Selection of candidates

The JCP is responsible for evaluating and nominating candidates for judicial appointments. The criteria and deliberations during this process are not explicitly defined or publicly disclosed, allowing the judiciary to wield considerable influence without any external scrutiny. This lack of transparency has raised concerns about favoritism and nepotism in the appointment process.

Influence over the Parliamentary Committee on Judges Appointment (PCJA)

While the PCJA has the power to approve or reject the JCP's nominations, it can only do so with a three-fourths majority. This high threshold can potentially make it difficult for the PCJA to reject the JCP's recommendations, further strengthening the judiciary's dominance in the appointment process.

Historical precedent

Pakistan's judicial history has seen several instances where the judiciary played a significant role in shaping its own composition. For example, the 1996 Al-Jihad Trust case resulted in the "judges' case" doctrine, which established that the Chief Justice of Pakistan had a decisive say in the appointment of judges. Although the JCP was later formed to introduce checks and balances, the judiciary's influence in the process remains substantial.

Furthermore, Pakistan's judiciary has been subject to political and military interference, compromising its independence and integrity. For instance, the 1997 attack on the Supreme Court by supporters of then-Prime Minister Nawaz Sharif and the 2007 suspension of Chief Justice Iftikhar Chaudhry by General Pervez Musharraf demonstrate blatant executive overreach. In comparison, the best judiciaries in the world enjoy a higher degree of insulation from political pressures.

Pakistan's judicial capacity-building and professional development are inadequate compared to other countries, potentially compromising judicial competence and integrity. To rectify this, Pakistan should implement reforms to increase transparency, diversity, and independence in judicial appointments, drawing from successful models such as Canada, Sweden, or Scandinavia. Additionally, initiatives such as collaboration with international organizations, exposure to best practices, and the creation of a dedicated institute for judicial education and training should be prioritized to enhance the judiciary's overall quality.

In conclusion, the judicial appointment processes in mentioned countries exhibit a strong emphasis on merit, transparency, and independence. By contrast, Pakistan's system suffers from several flaws, including a lack of transparency, limited diversity, political and military interference, and insufficient capacity-building initiatives. To strengthen its judiciary and ensure it remains on par with the best judiciaries in the world, Pakistan must address these flaws through comprehensive reforms and a commitment to the principles of judicial independence and accountability.