Political influence, favouritism behind elevation of high court judges, suggest lawyers

• ‘The present system of elevation to higher judiciary has many shortcomings’

Legal fraternity’s criticism against practice and procedure currently in place for the nomination of high court judges is gaining momentum as many bar leaders and lawyers openly rue the absence of open and clear criteria being observed for elevation to higher judiciary.

The process of elevation to high court is enshrined in Article 193, which spells out the prerequisites like age (not less than 45 years) and years of practice (minimum 10 years) for appointment of high court judge and Article 175A (8), (12), (13) of Constitution of Pakistan which sheds light on the process of appointment.

Article 175A (8) says, “The commission by the majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a judge in the Supreme Court, a high court or the Federal Shariat Court, as the case may be.” The commission in Article 175A(8) refers to Judicial Commission of Pakistan that comprises of Chief Justice of Pakistan, four most senior judges of Supreme Court, one retired chief justice of Supreme Court or former judge of Supreme Court, federal minister of Law and Justice, Attorney General of Pakistan and a senior advocate Supreme Court nominated by Pakistan Bar Council.

Article 175A(12) deals with the Parliamentary Committee and reads, “The committee on receipt of a nomination from the commission may confirm the nominee by a majority of its total membership within 14 days, failing which the nomination shall be deemed to have been confirmed:

[Provided that the committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period]

[Provided further that if a nomination is not confirmed by the committee, it shall forward its decision with reasons so recorded to the commission through the prime minister]

[Provided further that if a nomination is not confirmed, the commission shall send another nomination.]”

And lastly, Article 175A(13) says that once the committee sends the name of nominee after confirmation to the prime minister, he’ll forward the same to the president for an appointment.

For the purpose of clarity, it is pertinent to mention here that the court system of Pakistan is bifurcated into two tiers namely superior and subordinate judiciary. Supreme Court of Pakistan and provincial high courts form the superior judiciary and are primarily entrusted with enforcement of fundamental rights, appellate jurisdiction, oversee and administration of matters pertaining to the subordinate judiciary.

Subordinate or lower judiciary comprises of civil judges, judicial magistrates, additional district and sessions judges and session judge adjudicate matters of both civil and criminal nature at district and tehsil level all across Pakistan.

“The present system of elevation to higher judiciary has many shortcomings,” said Advocate Supreme Court Chaudhry Faisal Hussain, when contacted. Advocate Faisal was of the opinion that former chief justice Iftikhar Chaudhry brought in the 19^th Amendment, after which the role of the executive in the appointments diminished. “In the UK, judges have no role to play in the appointment of judges. Our present system has no transparency and everything is decided behind closed doors. There is no oversight; there is no check,” he concluded.

Advocate Badar Iqbal Chaudhry said that the system, despite having a few flaws, is a good one. “Every now and then, political appointments do take place but since 18^th Amendment, the role of judges have increased in making these appointments, as the vast number of members of Judicial Commission are judges, so the push and pull of political interference has decreased,” he said. Badar stressed that taking judges from the lower judiciary in high courts will rob the higher judiciary of experience and exposure of seasoned lawyers.

“40 per cent of quota in higher judiciary belongs to judges of subordinate courts, according to promotion rules of high court. However, it has never been filled, one or two judges get elevated to high courts,” said Advocate Supreme Court Majid Bashir. “More lawyers should come in the higher judiciary because they have a variety of experience in litigation. However, we can’t deny the fact that most appointments are being made on a political basis. These appointments have caused irreparable damage to the higher judiciary,” he concluded.