Across the border

OSAMA SIDDIQUE

back to issue

UNTIL a few months ago, there was no ambiguity in Pakistan about the sound reasons for aborting the idea of defining a basic structure for the Constitution along Indian lines. The matter was done and dusted. The justifications were enunciated with clarity and assurance in various judgments of the Supreme Court of Pakistan. That was a few months ago. That the court may now commit a volte-face is emerging as a clear possibility in on-going hearings of certain constitutional petitions contesting the newly introduced 18th Amendment to the Constitution.

The 18th Amendment is a set of various amendments engendering the widest possible consensus of all major political parties and achieved through a year-long and fairly transparent and rigorous engagement conducted by a special parliamentary committee composed of representatives from all such parties. Of particular consternation to various Pakistani political and legal commentators is the Supreme Court’s inherent decision to admit these petitions in the first place. The court proceedings so far portend that the 18th Amendment – or at least that part of it which amends the process for judicial appointments to the appellate courts, once again very similar to the Indian model – looks likely to flounder, even before coming into play.

The 18th Amendment introduces several changes to a Constitution that has seen much mutilation at the hands of past dictators. Importantly, it amends the process of appointment of High Court, Federal Shariat Court, and Supreme Court judges.1 The original 1973 Constitution left the appointment mechanism for judges of the Constitutional Courts open-textured and potentially liable to serious political stalemates between the President and the Chief Justice of the Supreme Court. Justices of the appellate judiciary were to be appointed by the President ‘after consultation with’ the Chief Justice in the case of the Supreme Court (art. 177), and ‘after consultation with’ the Chief Justice, the concerned Governor, and the Chief Justice of the concerned High Court in the case of the High Courts (art. 193).

 

This ‘consultative’ appointment formula ostensibly had four design flaws: first, it did not envision any meaningful role for the parliament in the selection of judges except for the ‘advice’ of the Prime Minister; second, given that the executive office was in danger of being a placeholder for authoritarian rulers, it made little sense, from the point of view of democratization, to entrench the power of judicial selection in the executive; third, the inconclusiveness of the constitutional language raised the specter of a ‘chilling effect’ or undue political pressure on the Chief Justice by the President, or at worst, a protracted deadlock between them; and fourth, the lack of any definition of the ‘consultation’ process left much to be desired in terms of transparency and public scrutiny of the selection criteria.

As it turned out, rows over judicial appointments between the Supreme Court and the government erupted during a period of fledgling democratic transition in the 1990s after more than a decade of suppressed political activity under General Zia-ul-Haq. The Supreme Court capitalized on a narrow window of opportunity to rule in its own favour, turning once again to Indian precedent in the Al-Jehad Trust case.2 Following the Indian Supreme Court judgment of Supreme Court Advocates-On-Record Association,3 the court held that the opinion of the Chief Justice of the Supreme Court has primacy in the process of ‘consultation’.

 

Earlier this year, controversy erupted once again, this time over the elevation of certain judges of the Lahore High Court to the Supreme Court.4 The contestants offered varying interpretations of whether the Chief Justice’s advice in the mandatory consultation with the President was merely recommendatory or of a more binding nature.5 It also emerged that there was ambiguity on what precisely the President was required to do to explain and abide by his stance, if in disagreement with the Chief Justice’s recommendation. This revealed, once again, the deep volatility in judicial-executive relations injected into the appointments process by the Al-Jehad Trust case.

Another impasse earlier this year surrounded judicial appointments in the Lahore High Court. It was characterized by allegations of political partisanship and nepotism in these appointments by the Governor of Punjab, as well as divided legal opinion on the respective formal and actual roles of different players in the appointment process, which further revealed the shortcomings of the extant process.6

 

The 18th Amendment replaces this strained consultative mechanism – wrought with uncertainty and judicial arbitrariness – with a more inclusive and transparent two-level process for judicial appointments to the Constitutional Courts through Article 175(A).7 It assigns a key role to the judiciary to make all the initial nominations for appointment. For the Supreme Court, the nominations are to be made by a ‘Judicial Commission’ that is headed by the Chief Justice of the Supreme Court. The majority of its other members are senior judges, the minority comprising of legal representatives of the executive and senior lawyers.8

A similar model is introduced for the Federal Shariat Court9 and the High Courts in the provinces.10 The nominations by the ‘Judicial Commission(s)’ are then evaluated and final decisions about acceptance of recommendations made by a ‘Parliamentary Committee’ comprising of eight members of parliament, four each from the treasury and opposition benches, and two each from both houses of parliament in case of both the treasury and the opposition.11

 

It would be naďve to separate the Supreme Court’s often and publicly expressed displeasure with the introduction of Article 175(A) of the Constitution as potentially egregious to the ‘independence of the judiciary’ and its alacrity in admitting the aforementioned petitions challenging the 18th Amendment.12 While trying to justify the jurisdiction for adjudicating upon the fate of Article 175(A) in particular, the Supreme Court is divulging a proclivity to resuscitate the seemingly dead and dusted notion of a ‘basic structure doctrine’ in the Pakistani constitutional framework. Also rejuvenated is the possibility of a greater role for Article 2-A of the Constitution. This is quite evident from the statements made in court by some of the judges during the hearing of the 18th Amendment petitions.13 That this is transpiring at a point in time when there is a growing chasm between a highly confident (and in some cases belligerent) post-‘Lawyers’ Movement’ judiciary and a stuttering and often hapless post-Musharraf elected government confronting issues ranging from a tanking economy, violent extremism, natural calamities and conflated governance challenges, is no coincidence.

 

It seems the ideal time for mistrust as well as for asserting turf. At the same time, the fact that such a weak polity could emerge with deliberated and consensus-based constitutional amendments is seen by many as a vindication of restoring faith in the democratic process. However, the legislative buoyancy seems to have stirred wide insecurity in the recently restored judiciary that perceives Article 175(A) as the Trojan horse for future political foul play with judicial appointments. That, however, may not be all. Still euphoric over the success of the ‘Lawyers’ Movement’ – a deceptive nomenclature as it masks the potent role played by political parties and various sections of civil society – elements in the judicial leadership imagine in their reinstatement a popular mandate for bigger and better things. The underlying popular prejudice against politics and politicians seems to self-justify this vaulting ambition.

 

However, if the argument in favour of the ‘basic structure doctrine’ and its use for precluding the parliament from judicial appointments is that politicians are tyrants, then the problem is hardly resolved by replacing the tyranny of the majority with the potential tyranny of a structurally exclusive, increasingly insular, and historically unaccountable minority. Leafing through Pakistan’s constitutional history, it is clear that tyranny is a label better suited to de facto military governments that have sometimes abrogated, sometimes suspended, sometimes revived in a defaced form and sometimes significantly altered the nature and tenor – or basic structure if you will – of the Pakistani constitutional framework. Moreover, this has transpired with the judiciary’s own imprimatur upon such whimsical and arbitrary ‘constitutional amendments’. No popularly elected government in Pakistan has ever deemed the extra-constitutional constitutional. That privilege lies onerously on the shoulders of the appellate judiciary alone.

 

In more deferential terms, independent voices in the media and the observant society have been trying to communicate their apprehensions to the Supreme Court.14 In a separate petition, they have strongly argued that the petitions challenging the new mechanism of judicial appointments introduced by the 18th Amendment as violative of judicial independence are untenable. Challenging the criticism levied against Article 175(A), they emphasize that an overwhelming majority of constitutional democracies around the world that uphold the principle of the independence of the judiciary have judicial appointments processes that are broad-based and without a decisive role being vested in members of the judiciary itself.

 

India and Pakistan, in this context are rather questionable exceptions. They justify the ‘Parliamentary Committee’ by arguing that questions regarding a judicial candidate’s worldview and social vision deserve scrutiny and assessment by the people of Pakistan at the widest level of inclusion. The value of effective participation of political representatives in the process of appointments, they say, lies in the opportunity to be able to assess and provide input with respect to the various proposed candidates. Furthermore, they point out that previous judgments on such themes too were reflective of competing worldviews and visions between equally honourable and professionally competent members of the appellate judiciary. Article 175(A) of the Constitution is an attempt, they plead, by the parliament to put in place a process that is transparent and aimed at generating broad agreement between the various stakeholders with respect to successful candidates for appointment to the superior judiciary. In fact, the role of the ‘Parliamentary Committee’ is subsidiary to that of the ‘Judicial Commission’ as the former can only disapprove a nomination of the latter through a supermajority of six out of eight votes drawn from across the various political divides in parliament.

 

The fact that the ‘Parliamentary Committee’ may not suggest any names of its own ensures, they submit, that no person may be appointed to the Constitutional Courts without enjoying the support of the ‘Judicial Commission’. Consequently, they posit, only those persons will be elevated to the Bench whose professional competence and character have passed muster both at the level of the ‘Judicial Commission’ and the ‘Parliamentary Committee’. Above all, they implore the Supreme Court not to open the Pandora’s box of ‘basic structure’, if that indeed is the justification used for striking down Article 175(A).15

As Pakistanis await the Supreme Court’s verdict at this crucial juncture of the country’s history, and regardless of its outcome, this is the closest that Pakistan’s apex court has ever come to embracing some version of the Indian ‘basic structure doctrine’. If embraced, this completely unexpected avatar promises to force fundamental changes to the ambit of judicial powers, as also to the relationship between the judiciary and the other two branches of government. That relationship may unsurprisingly be a highly contentious and destabilizing one. On the other hand, if Article 175(A) survives, it will be interesting to see whether the decision to cast off a rather cloistered and opaque mechanism for judicial appointments by Pakistan stirs a movement towards a reconsideration of its counterpart in India as well.

 

Footnotes:

1. See text of art. 177(1): ‘The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.’ The requirements for appointment of appellate judiciary judges, as laid out in the Constitution, are quite undemanding for such high offices. Focusing solely on a minimum time period of requisite legal or judicial work experience, they do not touch upon or attempt to erect a bar for the quality of experience, reputed expertise, aptitude, and intellectual vision and integrity. It may be argued that though not stated in the constitutional provisions, the very aforementioned parameters govern the actual appointment process. However, the problem is that there is no way of verifying this as the appointment process is also popularly perceived as steeped in mystique. This is both due to the ambiguity surrounding the precise role played by different organs of government in nominations as well as the utter opaqueness of the process to the public gaze.

2. Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324. The Supreme Court observed that the ‘relevant Articles in our Constitution relating to appointments in Judiciary with minor variations have been lifted from the Indian Constitution, 1950, and, therefore, the factum as to how they have been interpreted and acted upon in India is relevant.’

3. Supreme Court Advocates-On-Record Association v. Union of India AIR 1994 SC 268.

4. It emerged that despite laying down a ‘seniority principle’ the Al-Jehad case had not been successful in bringing clarity and closure to the various levels of appointment processes. The President and the Chief Justice had different ideas about the nature of consultation between the two on such appointments. It crystallized when the President elevated the Chief Justice of the Lahore High Court to the Supreme Court. The Chief Justice opposed this, citing lack of consultation with him, which the President’s office denied. When the President issued a notification to elevate the said judge, the Supreme Court promptly suspended the notification. See ‘SC suspends presidential orders over judge’s appointment’, The Daily Dawn, 14 February 2010. Eventually, the Chief Justice of the Supreme Court had his way and two other judges of the Lahore High Courts were elevated to the Supreme Court instead. See Ahmad Hassan and Nasir Iqbal, ‘Government Gives in to Supreme Court’, The Daily Dawn, 18 February 2010. It was apparent that the Chief Justice perceived his recommendations in such a consultation to be more or less of a binding nature, whereas the President saw things differently, and further that there was also no clarity on how to resolve the situation if a stalemate emerged between the two. Another controversy arose at the time on the appointment of an ad hoc judge to the Supreme Court, to which the government was opposed, once again citing the Al-Jehad Trust case. See Nasir Iqbal, ‘Government against appointment of ad hoc judges in SC’, The Daily Dawn, 8 January 2010. The judge, backed by the Chief Justice of the Supreme Court, was eventually elevated as once again the government backtracked.

5. Neither of the two propounded interpretations of the text that ultimately reduce the role of the President or the Chief Justice into mere rubber stamps; or indeed the extant judicial pronouncements on the nature of the requisite ‘consultation’ between the two, uncontrovertibly decide the matter. If they did, one would not have the growing divide in public opinion. Furthermore, if one proceeds with the understanding that the ‘seniority principle’ is now an accepted constitutional imperative for appointment of the Chief Justices in the wake of the Al-Jehad Trust case and subsequent case law, it remains unclear why it is not applicable to all elevations to the Supreme Court, given that the essential logic behind this principle is to curb ad hocism. Speaking of ad hocism, it merits probing whether the Article 182 provision for appointment of ad hoc judges of the Supreme Court and its recent use, rests easily with notions of transparency and impartiality of appointment. The very word ‘ad hoc’ after all denotes the possibility of unbridled discretion and favouratism.

6. See, ‘Taseer alleges nepotism in LHC appointments’, The Daily Times, 24 February 2010. See Osama Siddique, ‘A Flawed Debate’, The Friday Times, 12-18 March 2010. It turns out that the actual process of the vetting and nomination of names for appointment is far more complex and multi-player than would come across from the relevant constitutional provision. Id.

7. For the text of the 18th Amendment, see ‘Annexure E’ – and for the changes introduced through the new Art. 175(A), see pp. 40-44 of ‘Annexure E’ – of the official report of the Special Committee of Parliament (hereinafter the ‘Parliamentary Report’), available at http://criticalppp.com/wp-content/uploads/2010/04/report_constitutional_18th_amend_ bill 2010_020410.pdf.

8. Id. Art. 175 A (2). The members of the Judicial Commission are: (i) Chief Justice of Pakistan; (ii/iii) two most senior Judges of the Supreme Court; (iv) a former Chief Justice or a former Judge Member of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the two member Judges, for a period of two years; (v) Federal Minister for Law and Justice; (vi) Attorney General for Pakistan; and (vii) a Senior Advocate of the Supreme Court of Member Pakistan nominated by the Pakistan Bar Council for a term of two years.

9. Art. 175(A) (7). See pp. 42-43 of ‘Annexure E’ of the Parliamentary Report, supra note 7.

10. Art. 175(A) (5). See pp. 41-42 of ‘Annexure E’ of the Parliamentary Report, supra note 7.

11. See supra note 7.

12. This has provoked some scathing criticism from local political and legal commentators who have serious reservations about the Supreme Court’s power to question a constitutional amendment, and equate the Supreme Court’s decision to judge the ‘constitutionality’ of the Eighteenth Amendment with ‘judging democracy’ itself. See for example Khaled Ahmed, ‘Wages of Imitative Activism’, The Friday Times, 17-23 September 2010; Maryam Khan, ‘Towards a New Hegemony’, The Friday Times, 17-23 September 2010; Ejaz Haider, ‘Judicial Dues Ex Machina’, The Friday Times, 17-23 September 2010; Asad Jamal, ‘Politics of Judicial Appointments’, The Friday Times, 17-23 September 2010; Chaudhry Fawad Hussain, ‘Extraordinary Judgments’, The Friday Times, 17-23 September 2010; and Osama Siddique, ‘Wasteland of Discourse’, The Friday Times, 17-23 September 2010.

13. The idea of the possible reintroduction of the ‘basic structure doctrine’ and a ‘grundnorm’ status for Article 2-A is even more controversial today as they both carry the risk of creating and entrenching an all-encompassing, over-powerful and unaccountable judiciary. For a snapshot of the critique of possible reintroduction of these ideas into the Pakistani constitutional framework that has been appearing in the Pakistani press see, Cyril Almeida, ‘Judicial Appointment Process Under Fire’, The Daily Dawn, 5 September 2010; Salman Akram Raja, ‘Bars to Amendment’, The Daily Dawn, 24 June 2010; Salman Akram Raja, ‘Constitutional Conundrum’, The Daily Dawn, 25 May 2010; and Osama Siddique, ‘A Flawed Debate’, The Friday Times, 12-18 March 2010.

14. The author, along with a group of independent citizens and citizen organizations, was allowed to join the on-going proceedings vis-ŕ-vis constitutional petitions against the 18th Amendment, through the courts’ acceptance of an intervener application. The petitioners took upon themselves the role of presenting a broad based civil society perspective, given the acute significance of the constitutional questions before the court. They attempted to persuade the Supreme Court to not introduce a ‘basic structure theory’ model borrowed from India or one based on Article 2-A of the Pakistani Constitution into the Pakistani constitutional framework, citing several past judgments of the Pakistani appellate courts and a host of additional arguments in support. See Civil Misc. Application by Senator Mir Hasil Bizenjo & Others in C. P. No. 40/2010Abdul Hafeez Pirzada v. Federation of Pakistan. Copy on file with the author.

15. Id.

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