APPOINTMENT OF JUDGES IN THE SUPERIOR COURTS

By
JUSTICE (RETD) NASIR SAEED SHEIKH,
Former Senior Puisne Judge,
Lahore High Court.

After the Eighteenth Amendment of the Constitution,the procedure for the appointment of the judges in the Superior Courts was subjected to fundamental changes in order to introduce and reflect a practical transparency in the matter.However the overall experience so far undertaken needs to be analyzed in some depth.

It is a true fact that the matter of appointment of Judges at the Superior level is of great privilege which be not discussed so openly but when we desire to adopt transparency into any system then the honesty of the responsibility calls for a sincere but thorough analysis of the prevailing situation.Although the honorable Supreme Court Judges while addressing different ceremonies have highlighted the need for non interference by the Public Institutions into the affairs of each others in order to create harmonious working of all but it is a matter of record that invariably the honorable Supreme Court,as per the requirement of its Constitutional and Legal obligations of interpreting the Law, has struck down numerous appointments on different key posts in the public administrative sectors on the simple grounds of apparent lack of exercise of transparency. The prime question then arises as to why the principles of due transparency be not allowed to be applied in the field of appointment of Judges in the Superior Courts.Similarly after the appointments of the honorable Judges in the Superior Courts the scrutiny of their day to day working be also allowed to be undertaken at some level authentically, in the public interest,because the honorable Judges of the Superior Courts avail huge financial benefits and facilities out of the national exchequer ;to be more specific a Judge of the High Court now a days draws a salary of about seven lacs plus per month alongwith numerous other costly perks and financial benefits, in recognition of or for facilitating the due performance of his or her onerous duties whereas a judge of the Supreme Court can have approximately fifty thousand more added in the above figure. It is also need of the current times that the entire process of selection and then of the appoinment of the Judges in the Superior Courts be not only be duly reported to the Public Records of Ministry of Law, but then also particularly to that of the appointing authority which is the President of Pakistan,to which record the Public must have an easy access.No body is above the Law in the Country as per the Constitution.

As per the Constitution,once an honorable Judge is appointed in the Supreme Court, the High Court or the Federal Shariat Court,as the case may be,He or She can only be removed through proceedings to be initiated and finalized in the Supreme Judicial Council constituted for the purpose.

After the Eigteenth Amendment,we have not seen any performance of the Supreme Judicial Council so far in the matter of entertaing,hearing and ultimate decision of the complaints,references which are stated to have been lodged before it against some members of the Superior Judiciary ; in none of the matters so far referred to it, the necessary orders passed have been learnt to have been even communicated to the respective complainants or the persons making the references.Similarly in none of such cases even a hearing is known to have taken place in order to reflect the exercise of the requisite transparency.

The post of a Judge of the High Courts,Federal Shariat Court and the Supreme Court Of Pakistan carries the responsibility of dispensing justice in accordance with the Constitution,Law and in the case of Federal Shariat Court, the knowledge in depth of the Injunctions of the Quran and Sunnah. The persons to be appointed to such a high level responsible cadre must be actually possessed with very high standard of merit in the relevant field and additionally the National Judicial Commission which is the Constitutional Authority to select and then recommend such appoinments, must be shown to have made real exercise in assessing and analyzing the true potentials, based upon written reasons, of the persons selected for the posts.The necessity of recording the reasons for the selection can only enable the principles of transparency to be satisfied otherwise nobody can know the considerations prevailing in the minds of the concerned officials for making the selections. The persons to be appointed must be shown in the records to bear the required unimpeachable personal characteristics not only before the appointment but more necessarily during the entire service period. There must be an open invitation of objections upon the proposed names. If the appointments in the judicial hierarchy itself are left to the whims and caprice of the few who in return are answerable to none, then many question marks crop up to be answered by the responsible quarters.

We donot find any solid or systematic method which is followed in selecting the merits of the persons by the respective Chiefs of the above Courts for initiating the appointments. The Rules of the National Judicial Commission be duly amended to lay down the actual criteria to be followed in the process.If the records of the Courts are allowed to be looked into,in the appointments so far made,the noting down of the solid detailed reasons in making the selections by the respective Chiefs would be a rare phenomina, or at least it is so privileged a process that none from the public can have an access to it at any stage.Why such practice should not be strongly discouraged;the records of the appointments to such like high profile public offices of national responsibility be made public and further allowed to be easily looked into by the public.

The Educational Documents of the persons appointed be not only scrutinized but be got duly verified.

In the European Countries and particularly in USA the judges before their selection,are openly questioned about their past performances in their previous private and public fields, live on the TV transmissions for many days by the members of the relevant committee of the Congress, as it is out of the public exchequer that the incumbents of the posts are paid for.Such a practical practice be introduced and entrusted to be performed by the Parliamentary Committee already constituted under Article 175-A of the Constitution.

It is thus the need of the time that mere seniority as a Judge or an Advocate, must not be allowed to prevail in the process of selecting persons in the fields of Pakistan Superior Judiciary,in order to satisfy and prove openly the compliance with fundamentals of merit.

While elevating an honorable Judge to the Supreme Court of Pakistan the reported Judgments of the person, if to be taken from the High Court, be duly noted and thoroughly evaluated with reasons in order to fulfill the process of transparency.

The people should be allowed to fairly compete for the process,feed in the negative and positive points,about persons under consideration,openly, without fear or favour;an honestly transparent methodology be adopted to complete the selection process,where recorded reasons for the finalization of the process can be looked into.

In the end let the Registrar of the Lahore High Court bring to light the names of the judges of the Lahore High Court who obtained the medical grants and in how many millions,from the Chief Minister of Punjab/ Government of Punjab,during the years 2012-2013,inspite of being appointed by the Federal Government of Pakistan more particularly by the President of Pakistan as the judges,and whether any authentic documentary proof from the concerned foreign/ local hospitals,of the spending of the grants upon the specific purposes,was submitted to the High Court Record,if not to the records of finance department of the Provincial Government,by those beneficiary judges,inspite of the point having been raised at the departmental level;

The Registrars of all the High Courts should also publicize the names of the judges of the High Courts with their respective list of the reported judgments in the Law Journals of the Country,since the year 2009 till the month of July 2014,when the last of the judges of the said period either retired from the High Courts or were elevated to the Supreme Court,so that the judicial work performance at the Constitutional level of those judges could be visualized.

After all the judges of the superior Courts must feel themselves answerable to the people of Pakistan to a great extent to justify the due performance of their institutional obligations as per the oaths taken by them of their offices.