Judicial Appointments in Pakistan: Coming Full Circle

Judicial Appointments in Pakistan: Coming Full Circle

Saroop Ijaz*
This comment pertains to judicial appointments in Pakistan.
It explains how the traditional or pre-18th Amendment
process of appointing judges gave the judiciary clear
dominance over regulating the appointment of judges.
Consequently, this process lacked all the necessary checks
and balances. The 18th Amendment attempted to change
this state of affairs by giving the Parliament a role in
judicial appointments by establishing two necessary bodies:
the Judicial Commission and the Parliamentary Committee.
However, subsequent legislative and judicial developments
have reverted the situation to the pre-18th Amendment
position.

Introduction
The question posed by the Roman poet Juvenal, ‘Quis
custodiet ipsos custodes?’ (who will guard the guards?), finds
resonance in the contemporary constitutional discourse in Pakistan
on judicial appointment processes. The primary objection to the
traditional appointment process of judges was that it essentially
entailed judges appointing judges. The objection was particularly
relevant in the case of the superior judiciary (the reference here is
to the High Courts and the Supreme Court of Pakistan) where the
only constitutional accountability process was also within the
exclusive control of the judiciary. The process visibly lacked any
checks and balances. As recently as 2010, the judiciary has quite
jealously guarded its definite and ultimate control over regulating
the entry of judges into (and, in one rare case, exit from) the
judicial system.
An attempt was made to change the traditional model of
appointments through the 18th Amendment to the Constitution of

*
Partner at a Pakistani law firm. His core area of practice is criminal and
constitutional litigation.

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Pakistan, 1973 (the ‘Constitution’). The intention of the 18th

Amendment was to give the Parliament a role in the appointment
of judges. In this comment, I examine the 18th Amendment and
subsequent developments, both legislative and judicial, and argue
that the situation, as it currently stands, has for all practical
purposes returned to the pre-18thAmendment position.
Pre-18th Amendment Process
The process of judicial appointments in the Constitution
before the passage of the 18th Amendment was that the Chief
Justice of the Supreme Court recommended a panel to the
President, who selected a suitable candidate from that panel.
Similarly, for the appointment of judges in the High Courts, the
Chief Justice of the concerned High Court forwarded a panel to the
President which was channelled through the Governor of the
Province and the Chief Justice of Pakistan. The pivotal role in the
process was that of the Chief Justice of Pakistan as well as the
provincial Chief Justices. In the famous 1996 ‘Judges’ Case’, the
Supreme Court further curtailed the executive discretion of the
President, almost to the point of making it entirely ineffectual.1
The Court held that the recommendations of the Chief Justice were
ordinarily binding on the President, except where the President
departed from the recommendations, in which case the reasons for
his decision were justiciable.

The 18th Amendment

In an effort to restore institutional equilibrium and dilute
the unchallenged powers of the judiciary in the appointment
process, Parliament passed the 18th Amendment in 2010. The 18th
Amendment was a broad legislative exercise, with the judicial
appointments process just one of many subjects on the reform
agenda. The 18th Amendment articulated a new procedure for the
appointment of superior court judges. Briefly, the cases of

1
Al-Jehad Trust v Federation of Pakistan PLD 1996 SC 324.

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appointment in the superior courts were to be processed through

two forums. The first was the ‘Judicial Commission’ (‘JC’),
headed by the Chief Justice of Pakistan and comprising senior
judges of the Supreme Court (two), Chief Justices and senior
judges of the High Courts (two), the Attorney General (one),
Federal and Provincial Law Ministers (one) and representatives of
the Federal and Provincial Bar Councils (one). The JC was to
nominate judges for each vacancy. The nominations were then
forwarded to the second forum, the ‘Parliamentary Committee’
(‘PC’), for confirmation. The PC comprised eight members, four
from the National Assembly and four from the Senate, split equally
between the Treasury and Opposition Benches. All names
confirmed by the PC were to be forwarded to the President through
the Prime Minister for appointment.
The 19th Amendment
The 18th Amendment was challenged before the Supreme
Court on the ground, amongst others, that the new appointment
process infringed upon the independence of the judiciary. The
Supreme Court, in an unprecedented move, admitted the petition
for hearing before the full court.2 To hold the petition maintainable
was a very strong statement in itself. Historically, the view of the
Court seems to be of not sitting in judgment over constitutional
amendments. Yet, the Court ultimately displayed some minimum
level of restraint in not passing a definitive order. Instead, the
Court offered advice on how to modify the 18th Amendment to
make it conform to the Constitution, and referred the matter back
to the Parliament. However, the tone and tenor of the Court
proceedings and order indicated that it was not entirely within the
Parliament’s discretion to reject the Court’s advice. The Court
opined:
We had two options; either to decide all these petitions
forthwith or to solicit, in the first instance, the
collective wisdom of the chosen representatives of the
people by referring the matter for re-consideration. In

2
Nadeem Ahmad v Federation of Pakistan PLD 2010 SC 1165.

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adopting the latter course, we are persuaded primarily

by the fact that institutions may have different roles to
play, but they have common goals to pursue in accord
with their constitutional mandate.3
The abovementioned passage is relevant, since the Court seemed to
suggest that it had the power to adjudicate (and perhaps even strike
down) a constitutional amendment, hence communicating to the
Parliament that if the suggested changes were not made, the Court
had the option (perhaps even the inclination) of nullifying the
offending portion of the 18th Amendment.
The Court made two substantive suggestions. Firstly, that
the provisions may be amended to increase the number of the
‘most senior judges’ of the Supreme Court in the JC’s membership
from two to four. Secondly, that if the JC’s recommendation in
favour of a candidate for judgeship was not accepted by the PC,
the latter was required to give sound reasons for its decision and
refer the matter to the JC for reconsideration. If, upon considering
the PC’s reasons, the JC reiterated its original recommendation, the
latter became final and the President was bound to make the
appointment accordingly. The obvious implication of these
suggestions was that the judges (both serving and retired) would
now have an overwhelming majority of eight out of the total
eleven members in the JC. Additionally, the JC would have the
power to overrule the PC; a very clear step backwards in the
direction of the pre-18th Amendment situation. The Parliament
nevertheless complied, and the suggested amendments were made
and incorporated in the 19th Amendment.

Confirmation of the Judges’ Case

The first major opportunity for the Supreme Court to
interpret the provisions of the 19th Amendment and set the
contours of the new appointment process arose in 2011 in the case
of Munir Hussain Bhatti.4 The issue under contention was whether

3
ibid para 14.
4
Munir Hussain Bhatti v Federation of Pakistan PLD 2011 SC 407.

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the PC could disagree with the JC on the extension/confirmation of

judges of the High Court. The PC, based on the remarks of the
Chief Justice of the Lahore High Court, refused to extend the
probation period of four judges of the Lahore High Court. The
decision of the PC was challenged before the Supreme Court.
Overruling the decision of the PC, the Court held that ‘the
technical evaluation of a person’s calibre as a Judge has to be made
by the [Judicial] Commission, and once evaluated the
recommendations of the Commission are to be looked (sic) as
one.’5 The Court further asserted that the PC ‘can reject the
nomination on the grounds falling within its domain for very
strong reasons which shall be justiciable.’6 Here again, the
observation that the PC’s reasons for departing from the JC’s
recommendations would be justiciable meant that the superior
judiciary retained ultimate control over judicial appointments to
the superior judiciary.

Presidential Reference
Subsequent to the 18th and 19th Amendments, the JC
formulated the Judicial Commission of Pakistan Rules 2010 (the
‘JCPR’) to clarify and regulate the specifics of the appointments
procedure within the JC under the 19th Amendment. Importantly,
the JCPR vested the power to initiate nominations in the Chief
Justice of Pakistan alone. The most recent episode where the
controversy surrounding judicial appointments again took centre
stage and in which the Chief Justice’s powers, both within and
without the JC, became apparent, was regarding the appointment
of the Chief Justice of Islamabad High Court in 2013.7 Briefly, the
Chief Justice, exercising his nomination power under the JCPR,
purported to supersede the senior-most judge of the Islamabad
High Court, Justice Riaz A. Khan, in favour of his junior, Justice
Anwar Khan Kasi, as the new Chief Justice of the Islamabad High
Court. Further, in the meeting of the JC, Justice Kasi was treated as
the senior-most judge of the Islamabad High Court for the

5
ibid para 25.
6
ibid para 26.
7
Reference No. 01 of 2012 PLD 2013 SC 279.

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purposes of the appointment as Chief Justice. This confusion

emanated from the fact that both judges were appointed to the
High Court on the same day. In principle, however, Justice Kasi
was junior to Justice Khan for the reason that when judges are
appointed on the same day, the judge older in age is deemed to be
senior. The PC upheld the JC’s ‘recommendation’ and Justice
Kasi’s name was sent to the President for notification.
Interestingly, although the President does not have a role in the
judicial appointments process post the 18th Amendment, the
President in this case sent a reference to the Supreme Court
regarding the constitutionality of the recommendation.
The Presidential Reference raised three major legal issues.8
Firstly, do proceedings of the JC stand vitiated if a person
participates in them who is not so authorized? Secondly, what
remedy does the President have if asked to make judicial
appointments that, in his opinion, are against the Constitution?
And finally, as the senior-most judge of the Islamabad High Court,
did Justice Riaz A. Khan have a legitimate expectancy to be
considered for the office of its Chief Justice?
The second question is an easy one, since in the present
constitutional scheme, the President has no substantive role in the
appointment. As far as treating the second senior-most judge as the
senior-most for the purposes of the JC’s meeting and
recommendation, there is no express permission for that. The third
question is even more complex. In the past, the Court has
definitively established the principle that the senior-most judge has
a legitimate expectancy to be appointed as the Chief Justice (most
notably in the ‘Judges’ Case’). Yet, in the advisory judgment
rendered in the Presidential Reference, the Court side-stepped the
question and declined to pass a conclusive ruling. Instead of
adjudicating on the question of seniority and providing detailed,
compelling reasons for overruling the long-standing convention of
seniority, the Court stated that it would not decide the matter in the

8
ibid.

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advisory jurisdiction. And if Justice Riaz A. Khan felt aggrieved,

the Court suggested that he petition the Court himself.

The New Model

If the two cases of Munir Hussain Bhatti, 2011 and the
Presidential Reference, 2013 are studied in juxtaposition, a pattern
emerges. The first case rendered the PC almost redundant, or at the
very least, quite weak. The second judgment, while reaffirming the
supremacy of the JC in general, also established, in particular, the
powerful, steering role of the Chief Justice of Pakistan. It may
seem that the progress made in the Parliament has now been
undone by the Supreme Court. The debate in the Presidential
Reference on the intent of the Parliament in promulgating the 19th
Amendment is also peculiar, considering that the Parliament was
not given much choice by the Court in passing it. It might be said
that the Chief Justice is just one member of the eleven-member JC,
and accordingly has one vote. That is unquestionably true in
theory. However, after the introduction of the JCPR, it is only the
Chief Justice who can initiate or propose a name for appointment,
and the rest can either accept or reject it. Yet, even that does not
convey the real significance of the role of the Chief Justice.

Rethinking Judicial Independence

The traditional pre-18th and 19th Amendments’ process
gave inordinate power to the Chief Justice to appoint judges.
However, the surrounding political context meant that the power
was rarely exercised freely. The period after the lawyers’
movement and the restoration of the judiciary engenders an
unprecedented phenomenon in Pakistan’s political and
constitutional history. Never has there been a judiciary which has
been this powerful. The role of the Chief Justice has transformed
from the theoretically powerful head of the judiciary to the
practically unanimous leader (as far as the internal judicial
consensus is concerned). It is perhaps instructive to look at another
case to fully appreciate this point. In the 2009 case of Justice
Hasnat Ahmad Khan, the Supreme Court faced the question of the
legality of the appointments of judges who were appointed or took
oaths during the lawyers’ movement (also known as the ‘PCO

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Judges Case’).9 Under Article 209 of the Constitution, there is only

one constitutional mechanism for the removal of judges of the
superior courts, namely, through a reference to the Supreme
Judicial Council (the ‘SJC’), which is comprised of the senior-most
judges.10 However, instead of referring the cases of the ‘PCO’
judges to the SJC, the Supreme Court removed over one hundred
judges of the superior courts through a single judgment. The
jurisprudential ramification of this is that the SJC might now be a
defunct institution in terms of its exclusive power to hold judges
accountable.
There is another political dimension to this. With the
sweeping judgment in the ‘PCO Judges Case’, all the judges of the
‘opposing camp’ were sent home, with the result that the judiciary
(particularly the Supreme Court) became a homogenous group, and
somewhat of a monolith. Given this background, the Supreme
Court’s suggestion in the Presidential Reference that it was open to
Justice Riaz A. Khan to petition the Court himself against the
decision of the JC (perhaps, more significantly, against the
nomination by the Chief Justice as the ex officio member of the
JC), might be asking too much. While ‘politics’ and ‘factions’ may
seem like particularly harsh terms to use in relation to the Supreme
Court, the lawyers’ movement created clear divides between the
legal community; people were either with the movement or against
it. The intensity of the movement and the recklessness of the
regime of that time meant that the provision of nuance gradually
decreased to the point of being abandoned completely. Even now,
it is quite common to hear the opposing groups in the bar politics
to be sometimes referred to as pro- and anti-judiciary camps. These
labels make slightly more sense if understood as pro and anti the
Chief Justice of Pakistan. There has been very little dissent on any

9
Justice Hasnat Ahmed Khan v Federation of Pakistan 2011 PLD 680 SC. Also
known as the PCO (Provisional Constitutional Order) Judges Case.
A Provisional Constitutional Order, or PCO, is an extra-constitutional order that
suspends either wholly or partially the Constitution of Pakistan.
10
The Supreme Judicial Council of Pakistan is a body of judges empowered
under Article 209 of the Constitution of Pakistan to hear cases of misconduct
against judges.

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major constitutional case since 2009 (the Presidential Reference

being one notable recent exception). There seems to be a tacit
consensus on putting up a unified front in public regardless of
personal views; a bit like the Cabinet. The reasons for the
solidarity are not necessarily personal, although there is bound to
be some of that as well; they are largely rooted in recent
institutional experience. The impetus for this unity is the past
experience of the November, 2007 ‘emergency’ imposed by
General Pervez Musharraf. The Supreme Court has not abandoned
the ‘War Time’ posture of the emergency. Hence, while
considering the judicial appointment process and the fact that the
Chief Justice in theory has just one vote out of eleven, it is perhaps
significant that the Supreme Court has displayed a tendency to vote
en bloc which gives it a clear majority of eight out of eleven.
Ironically, the 18th Amendment was challenged and
accepted for hearing on the grounds of infringement of the
‘Independence of Judiciary’. The reference to the independence of
the judiciary and the potential threats that it faces have seen an
extraordinary rise in the past few years. Historically, the threat
came from an interventionist executive. That is, by and large, no
longer the case. Now, with the newly realized power post the
lawyers’ movement, there is the feeling that the judiciary
sometimes overcompensates for its past lack of autonomy and
takes the independence argument too far. A recent example is
when the Public Accounts Committee asked the Registrar of the
Supreme Court to render accounts of the administrative expense of
the Court.11 The Registrar refused on the grounds that this would
adversely affect the judicial independence. The particular reason
put forth by the Registrar is that according to Article 68 of the
Constitution, no discussion can take place in the Parliament
regarding the conduct of any judge of the superior courts ‘in
discharge of his duties’. The argument is a fairly weak one, as the

11
Public Accounts Committee has the responsibility of oversight of the
executive. The Committee examines the accounts showing the appropriation of
sums granted by the Assembly for the expenditure of the Government, the
annual finance accounts of the Government, the report of the Auditor-General of
Pakistan and such other matters as the Minister for Finance may refer to it.

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administrative expense of the Court cannot be equated with the

conduct of individual judges in the discharge of their duties. There
is evidence of a new and aggressive model of ‘judicial
independence’ which has come to signify the primary narrative in
the discourse on institutional dominance.

Conclusion
The entire debate on judicial appointments has to be
viewed in the context of this recent conception of judicial
independence. The attempt to maintain absolute or at least
substantial control over judicial appointments to the superior courts
is part of a broader institutional struggle. All of this has meant the
coming of a full circle, with, for now, the Chief Justice of Pakistan
firmly in the driver’s seat in regards to judicial appointments. This
should be a cause for some concern. Firstly, negating the basic idea
of constitutional amendments is dangerous, particularly for a
nascent parliamentary democracy such as ours. Secondly, the
principle of devolving decision-making from individuals to
institutions, and hence the entire idea of ‘checks and balances’,
seems to have been compromised.

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