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After all the recent hullabaloo on the appointments
of judges to the higher courts, the Constitutional Reforms Committee of parliament headed by Senator Raza Rabbani has agreed with consensus on the detailed procedure by which such appointments should be made.
The committee agreed on the formation of two commissions a judicial and a bipartisan parliamentary commission. The Judicial Commission will be headed by the Chief Justice of Pakistan and its members would include two senior judges of the Supreme Court, Federal Law Minister, Attorney General of Pakistan and a representative of lawyers from the Supreme Court Bar Association.
The Parliamentary Commission will comprise eight members four from each house nominated by the respective leaders of the house and opposition with equal representation to the treasury and the opposition and will elect its own head.
THE PROCESS
1. The Judicial Commission will send three names for each vacant post to the Parliamentary Commission, which will scrutinise the recommendations and approve or reject them by a two-thirds majority.
2. The finalised names will be sent to the prime minister who will then pass them on to the president for notification. In case the Parliamentary Commission fails to agree on a name, the recommendations will be sent back to the Judicial Commission for review and the process will be repeated.
In this scheme, the Parliamentary Commission has the final authority to approve or reject names proposed by the Judicial Commission, while the role of the prime minister and the president has been reduced to ceremonial approval.
The same procedure would apply for appointments to provincial high courts with the constitution of provincial judicial and parliamentary commissions and the governor would be the final approving authority.
The anomalies and flaws in the consultation process for the appointment of judges have been made apparent in the recent conflict between the executive and the judiciary over this issue. The case law (Supreme Court Bar Association vs the Federation of Pakistan, PLD 2002 SC 939) on which the Supreme Court seems to have relied in asserting that the chief justices recommendation were binding on the president, seems to go beyond Article 177 of the constitution, which stipulates that the president is the appointing authority with the consultation of the chief justice.
Through this verdict, the chief justice has been elevated to be the soul arbiter, which does not appear to accord with the constitutional scheme.
BENEFITS:
1. The proposal of the Constitutional Reforms Committee has opened up the consultative process, which was hitherto conducted behind closed doors. The media disclosure of the Punjab governors objections on the recommendations by the Chief Justice of the Lahore High Court for new appointments has revealed the urgent need for transparency in the process.
2. The more transparent the process, the more the public confidence such appointees would enjoy. Whether it is the question of the elevation of judges to the Supreme Court from high courts, appointment of ad hoc judges, or new appointments, deliberations should not be made in a secretive manner, because half the battle for justice is to have confidence in the judiciary.
3. The proposed process is very close to the original framework that the Charter of Democracy (CoD) had envisaged. The parliamentary oversight of the process means that the appointments will be made with the consensus of political forces across the board. That will further add to the stature, credibility and the acceptability of such judges. The process will provide a mean between the executive prerogative and judicial concern about the quality of the appointees, and remove any chances of manipulation by either side.
If followed in its true spirit, the process will promote the values of honesty and integrity, which are conspicuous by their absence in the current atmosphere where cronyism rules the roost. *
Daily Times - Leading News Resource of Pakistan
of judges to the higher courts, the Constitutional Reforms Committee of parliament headed by Senator Raza Rabbani has agreed with consensus on the detailed procedure by which such appointments should be made.
The committee agreed on the formation of two commissions a judicial and a bipartisan parliamentary commission. The Judicial Commission will be headed by the Chief Justice of Pakistan and its members would include two senior judges of the Supreme Court, Federal Law Minister, Attorney General of Pakistan and a representative of lawyers from the Supreme Court Bar Association.
The Parliamentary Commission will comprise eight members four from each house nominated by the respective leaders of the house and opposition with equal representation to the treasury and the opposition and will elect its own head.
THE PROCESS
1. The Judicial Commission will send three names for each vacant post to the Parliamentary Commission, which will scrutinise the recommendations and approve or reject them by a two-thirds majority.
2. The finalised names will be sent to the prime minister who will then pass them on to the president for notification. In case the Parliamentary Commission fails to agree on a name, the recommendations will be sent back to the Judicial Commission for review and the process will be repeated.
In this scheme, the Parliamentary Commission has the final authority to approve or reject names proposed by the Judicial Commission, while the role of the prime minister and the president has been reduced to ceremonial approval.
The same procedure would apply for appointments to provincial high courts with the constitution of provincial judicial and parliamentary commissions and the governor would be the final approving authority.
The anomalies and flaws in the consultation process for the appointment of judges have been made apparent in the recent conflict between the executive and the judiciary over this issue. The case law (Supreme Court Bar Association vs the Federation of Pakistan, PLD 2002 SC 939) on which the Supreme Court seems to have relied in asserting that the chief justices recommendation were binding on the president, seems to go beyond Article 177 of the constitution, which stipulates that the president is the appointing authority with the consultation of the chief justice.
Through this verdict, the chief justice has been elevated to be the soul arbiter, which does not appear to accord with the constitutional scheme.
BENEFITS:
1. The proposal of the Constitutional Reforms Committee has opened up the consultative process, which was hitherto conducted behind closed doors. The media disclosure of the Punjab governors objections on the recommendations by the Chief Justice of the Lahore High Court for new appointments has revealed the urgent need for transparency in the process.
2. The more transparent the process, the more the public confidence such appointees would enjoy. Whether it is the question of the elevation of judges to the Supreme Court from high courts, appointment of ad hoc judges, or new appointments, deliberations should not be made in a secretive manner, because half the battle for justice is to have confidence in the judiciary.
3. The proposed process is very close to the original framework that the Charter of Democracy (CoD) had envisaged. The parliamentary oversight of the process means that the appointments will be made with the consensus of political forces across the board. That will further add to the stature, credibility and the acceptability of such judges. The process will provide a mean between the executive prerogative and judicial concern about the quality of the appointees, and remove any chances of manipulation by either side.
If followed in its true spirit, the process will promote the values of honesty and integrity, which are conspicuous by their absence in the current atmosphere where cronyism rules the roost. *
Daily Times - Leading News Resource of Pakistan
