Voice of Khyber Pakhtunkhwa
Friday, September 30, 2022

“Judges choosing judges is the antithesis of democracy”

During the Second World War, When Luftwaffe (German Airforce) was bombing London and wreaking havoc, the British prime Minister, Sir Winston Churchill, while getting brief on the situation, asked, “Are the courts functioning?” When told that the judges were dispensing justice as normal, Churchill replied, “Thank God, If the courts are working, nothing can go wrong.” These historical words clearly indicate the importance, significance and resistance of a just society towards external threats and challenges.

Judiciary is regarded as a main pillar of the modern state upon which the entire building is resting. The dispensation of justice to society should be the first and foremost priority of the state as unjust society cannot survive for very long. It must also be remembered that justice means adjudication by the courts strictly in accordance with the law and the constitution without allowing subjective considerations to influence the ultimate verdicts. Therefore, judiciary should be the most self-righteous organization as the justice administered by it reinforces the building of the state.

The history of Judiciary in Pakistan has not many bright spots as it has remained a tool of the powerful from time to time. A concise history of Pakistan gives various such instances when the legal executive took on a supporting role to the powers that administered the state at that point. The question arises that despite a robust democratic setup and a very elaborative selection system, why is judiciary still not able to maintain its independence and is marred by allegation of favoritism and politicization.

The judiciary of Pakistan is a hierarchical system with two classes of courts: the superior judiciary and the subordinate judiciary. The superior judiciary is composed of the Supreme Court of Pakistan, the Federal Shariat Court and five High Courts, with the Supreme Court as the apex court. Azad Kashmir and Gilgit Baltistan have separate court systems. The Constitution of Pakistan entrusts the superior judiciary with the obligation to preserve, protect and defend the constitution.

The selection process of judges in Pakistan has been subjected to various debates as the confirmation process for judges is dubious and prone to favoritism. After passage of the 18th and 19th Constitutional Amendments, a new Judicial Commission (named Judicial Commission of Pakistan) and Parliamentary Committee were established for appointments of judges. The Judicial Commission of Pakistan consists of nine members: the Chief Justice of Pakistan, four senior judges of the Supreme Court, a former Chief Justice or judge of the Supreme Court nominated by the serving Chief Justice in consultation with the four serving judges of the Supreme Court, the Attorney General of Pakistan, the Federal Minister for Law and Justice and one senior advocate nominated by the Pakistan Bar Council. The Parliamentary Committee confirm or may not confirm the nominees of the Judicial Commission. All power of executive was curtailed by the judicial commission as president has no discretionary power but only to approve the nominees. Prime minister has only ministerial power regarding the appointment procedure.

Civil Judge Cum Judicial Magistrates are appointed by the Provincial High Courts, on the recommendation of provincial Public Service Commissions. These Commissions hold open competitive exams annually, which are advertised in national newspapers. The basic qualifications required are LLB (Bachelor of Laws) from any recognized university, and two years’ experience as an advocate in the jurisdiction in question.

Additional District & Sessions Judges can also be appointed by the Provincial & federal High Courts, from a pool of Lawyers and subordinate judges. To be eligible for appointment, Lawyers must have ten years’ experience as an advocate with good standing in the respective jurisdiction. They must also pass an examination conducted by the High Courts. Subordinate judges are also promoted from senior civil judges on seniority basis.

As Robert Stevens wrote in The English Judges, “Judges choosing judges is the antithesis of democracy”. Due to presence of a duplicate selection system with an internal exam, the appointees from lawyers are mainly politically motivated. The judges’ political affiliation in their appointment comes with a cost as they are indebted to their so-called political masters and thus in future cases related to the political parties will have to be molded to pay the debts thus confirming the famous saying of Milton Friedman, “There is no such thing as free lunch.”

Another issue is the intrusion of Judicial activism in the Executive affairs of the state by suo moto actions. A clear example of this misplaced judicial activism is Reko Diq case which is likely to cost billions of dollars to the country if the government fails to win the case. In the wake of COVID-19, the recent action by the Honorable Chief Justice of Pakistan to open markets for Eid-ul-Fitr shopping and then taking his decision back after two weeks is a sad story of our judiciary system.

In a nutshell, revamping the judicial system of Pakistan is a need of the hour. Firming up the judicial selection process and revamping the criminal justice system would increase the faith of general public on the judiciary and will also discourage parallel legal forums such as jirgas. It is crucial to reform the justice system to empower citizens and earn their trust by dispensing unbiased and speedy justice.

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