President Asif Zardari has announced his intention to “gift” us a constitutional amendment package before Pakistan Day, March 23, which will ostensibly remove all “unwanted” elements of the much mangled 1973 constitution of Pakistan, in particular the 17th constitutional amendment engineered by General Pervez Musharraf in 2004. This 17th amendment includes a ban on third term prime ministership and empowers the President to sack governments and appoint service chiefs and provincial governors. Since the proof of the pudding is in the eating of it, we shall have to wait and see what sort of package is actually unfurled before commenting on it. Meanwhile, some comment is necessary on the proposal relating to appointments of judges in the future.
The Parliamentary Committee on the proposed reforms package has recommended that a judicial commission comprising the Chief Justice of Pakistan, two senior most Supreme Court fellow judges, the federal law minister, attorney general and a leader of the Pakistan Bar Council should nominate judges for the SC. For the High Courts, this committee will comprise the Chief Justice, the senior-most fellow judge, the provincial law minister and a nominee of the provincial Bar Council. Majority vote decisions will be made for each individual vacancy. These will be sent to an eight member parliamentary committee comprising four members each from the upper and lower house of parliament in which the government, opposition and other parties will be sufficiently represented. This will be able to block any nomination by the judicial committee only by ¾ majority. The President or Prime Minister shall have no discretion in the matter.
The good news is that this is a more representative and accountable system than the one which exists today by virtue of the aggressive politics of the bar and bench in the last two years in which the judges have imposed a mechanism for self-appointment and selection which is unaccountable to parliament or the executive. The bad news is that this mechanism doesn’t touch the current judiciary that is packed with judges of the same political hue, who are acting like members of a trade union rather than individual judges in their own right and conscience. Indeed, the very omission of any reference in these recommendations to the ineligibility of judges who have taken oath on any Provisional Constitutional Order by a military dictator in the past – a critical element of the Charter of Democracy signed by the mainstream parties in 2006 – makes a mockery of the proposed process by legitimizing a vested-interest status quo.
There are other problems too. As presently constituted – the bar and bench are one politically – the six member judicial commission is tilted 4:2 against the executive. Similarly, given the fractured politics of the country, the requirement of a ¾ majority in the parliamentary commission to overturn the judicial commission’s nominations is a non-starter. Indeed, it is ridiculous, since even a constitutional amendment does not require more than a 2/3 majority. It would have been better to establish a seven member judicial commission for the SC with the CJP, two senior-most sitting judges, the attorney general, law minister and two high-standing and bipartisan members of civil society vetted by the PM and Leader of the Opposition and the media to break the ice if and when needed. In the same spirit, a simple majority vote by a nine member parliamentary commission should have sufficed to reject the judicial commission’s nomination. The same sort of formula should apply to appointments in the HC.
The worst part of this “deal” is that the current sitting CJP and CJs of the four HCs will dominate the judicial system for a decade to come, directly until they retire and indirectly by virtue of already having chosen their successors for many years to come in view of the new seniority lists! In this way, the lop-sided political imprint of the current self-absorbed and self-appointed judiciary will be felt even when parliamentary oversight is supposedly in place after the proposed constitutional amendment. The most worrying aspect of this whole debate is the one-sided view of the leaders of the lawyers’ movement and the Bar Associations, in particular the Supreme Court and Lahore High Court Bar Associations. They say that there should be no parliamentary oversight at all and the judiciary should remain a self-appointing and unaccountable body. This is a materially motivated approach by lawyers who present themselves before the courts for huge sums of money from their clients. It is meant to please the current crop of judges, regardless of the fact that the notion of parliamentary supremacy is undermined by it.
The “expert” bias in favour of the current “independent” judiciary is, of course, understandable. An unaccountable executive has long lorded it over the judiciary, often with disastrous results for democracy. But this doesn’t mean that we should push the pendulum to the other extreme. The most important requirement of the day is to hold the current judicial set-up accountable and nudge it to become neutral and unbiased so that it is a force for political stabilization and genuine accountability rather than destabilization. A self-appointed judicial dictatorship is much worse than an elected parliamentary dictatorship.