The Process of Judicial Appointments in Pakistan under the 1973 Constitution

Article excerpt

(A Comparative Analysis of the Constitutional Provisions over the Process of Appointment of Judges of Superior Judiciary before and after the Eighteenth Amendment in the light of the Judgments of the Supreme Court)

Abstract

The process of the appointment of judges of the superior judiciary has been the subject of great interest in Pakistan. In the Al-Jihad trust case (1996), the Supreme Court's interpretation of the constitutional provisions resulted in the power of appointment fall into the hands of the Chief Justice of the Supreme Court of Pakistan. This did not go well with the legislature and the executive, since they were left with no meaningful role in such appointments. The political setup established after the general elections gave a new facet to the process of appointment by adding Article 175A in the Constitution with the objective of balancing the role of the executive and the judiciary in such appointments.

The purpose of this paper is to analyse and critically evaluate constitutional provisions relating to the process of judicial appointments before the Eighteenth Amendment, and the reasons for altering the process under Eighteenth Amendment in the light of the Supreme Court judgments.

Keywords: Appointment of judges; the Supreme Court of Pakistan; 18th Amendment; Al-Jihad Trust case

Introduction

The process of appointment of judges has always been of great interest and significance in democracies. The interest proceeds from the fact that the process of judicial appointment is invariably linked with judicial independence which is the corner stone of almost all types of democracies. The primary objective of judicial independence may be summarized as

The court shall decide cases on the basis of impartial assessment of facts and its independent and impartial application of law over it, and there should be no impression of influence, direct or indirect from any internal or outside authority (United States Institute of Peace, 2009).

Wealth of deliberations and discussions has been made around the world over the process of judicial appointments with the objective to make judiciary independent from the executive and legislative control in the discharge of its judicial function. The approach towards the process may differ from one state to another, but the diversity in the process of judicial appointments in different democracies itself shows their interest in respect of significance and importance of judicial independence. (United States Institute of Peace, 2009)

The situation in Pakistan is no different from the above discussion. The constitutional framers while drafting the constitution kept in mind the fundamental principle of judicial independence and different constitutional provisions (Article 175, (3), Constitution of Pakistan, 1973) in letter and spirit including the preamble is reflective of the same principle.

The judicial independence is even more essential to countries like Pakistan and India which has written constitution. The Constitution prescribes tracheotomy of powers of all governmental organs and adds limits to their powers by providing the system of checks and balances, such scheme of Constitutional powers and checks and balances could work only when the judicial organ is independent in its judicial affairs.

Constitution and political History of Pakistan witnessed a great constitutional duel over the process of appointment of judges between the executive and judiciary in order to have final say in the matter. The importance of the process of judicial appointments lead to a series of constitutional events, showing the interest of the legislature and executive on one hand, and the effort of the supreme court to liberate itself from the Executive control on the other. Such efforts and struggle between the governmental organs could broadly be categorized in to three phases in our constitutional history.

1. The first phase which started from the passing of Constitution of Pakistan in 1973 till the passing Supreme Court Decision in Al-Jehad Trust case in 1996. …

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