Those waiting for a spectacular confrontation between the Parliament and Supreme Court must have been disappointed by the apex courts verdict on Thursday. The decision has been hailed by some and criticised by others. The Prime Minister says it has maintained the parliaments prestige. Senior lawyers have commended the court for sending Article 175-A back for reconsideration to parliament instead of striking it down, thus averting a serious crisis. The critics maintain that the decision has compromised the parliaments sovereignty by calling on it to review a unanimously agreed constitutional amendment. It has also been maintained that the formula being suggested for the appointment of judges negates the one detailed in the CoD.
There is a move in parliamentary democracies to rethink the way superior judiciary is appointed. The idea is to put an end to the role of the executive in the appointments to ensure the freedom of the superior judiciary. Two radical experiments, one in England and the other in India, have recently been conducted in this direction. The British formula envisages an independent selection board. The Indian formula gives the powers of selection to a collegium of judges. Both experiments are under watch and shortcomings in the new selection methods, especially the one in India, are being widely discussed. In Pakistan a third type of experiment is being debated with the Chief Justice of Pakistan playing the key role in appointments. While the debate goes on, one cannot ignore the fact that except for the present era, the history of Pakistans judiciary is full of black chapters. A decision regarding the body to appoint superior judges needs to be taken keeping in mind the countrys less than glorious judicial tradition.
With the matter back in parliament, it would pose a test to the mettle of our senior politicians some of whom have continued to shift position on the issue out of political contingencies. As the matter comes up for review in days to come, there is a need to take the decision keeping in view all the aspects of the matter. Freedom of judiciary has to be maintained. The selection method however has to be transparent, impartial and strictly in accordance with the criteria laid down. The new formula must add to the prestige of the judiciary and in no case make it controversial.
