Mr Abdul Hafeez Pirzada, while drafting the 1973’s constitution, might have trusted innocently that our and India’s living were similar and both countries had experienced the same legacy of English rule so the judicial systems of the two countries may go alike. Thus he had worked out correctly that in Pakistani constitution the method of appointment of judges be inserted on the pattern as was in the Indian Constitution then wherein the same or similar provisions were given in sections 124 & 217 though now stands much reformed through various stages. For Pakistan it was ok for those times but the Pakistani politicians and military rulers have used this way of appointments wrongly that is why Pakistan’s judicial verdicts are not trusted at any world forum. Our courts are not believed at all. Our decisions are not quoted anywhere, not even in Indian courts, declaring worthless.
Fact lies that we had a force of political appointees in the courts having constitutional security of service unto a certain age. What happened; that when a seat occurred in some High Court, the sitting political government or military ruler forwarded a name of some advocate, having 10 year’s bar membership and above 40 year’s age. He was either a relative of a known politician, or a staunch worker of that political party, or a ‘paid source’ of ISI in military regime or he had given huge amount of money to get his name approved. Good lawyers earn much more money than judges. Contrarily, some very good and competent lawyers might be available in the same bar but because of having no ‘connection’ with a politician or a serving military General, he was ignored.
This was the situation which had multiplied Pakistan’s hard luck. There was mostly a mixture of political appointees in all High Courts. Once in the PML(N) government, the then chief of Ehtesab Bureau Mian Saif ur Rehman made sure that false corruption cases on Benazir Bhutto and Zardari were to be dealt as per desires of Nawaz Sharif. He manoeuvred to send their files to a judge namely Malik Qayyum, brother of an MNA of PML(N) Pervaiz Malik. In 1997, when the Ehtesab slogan was initially trumpeted high by Mian Saif, a deputy secretary named Aftab Syed from Establishment Division was specially sent from Islamabad to Lahore to ‘launch & follow’ false cases of corruption against Benazir Bhutto, Mr Zardari and PPP’s nearby officers. He stayed there initially for 22 days in a 5 star hotel on government expenses till he was sure that all ‘important’ cases were fixed before Malik Qayyum.
This officer and another ‘so-called honest’ DS Nusratullah were later on awarded for getting all pre-arrest bails rejected, temporary injunctions terminated and permissions of FIRs granted against PPP-connected persons and some senior officers, all jobs were handled and accomplished by Justice (?) Malik Qayyum. There were 30-35 more judges in Lahore High Court then, why only Malik Qayyum was entrusted this sacred job.
Enough is enough. Some changes are required. The practice of allocating ‘special cases’ to a particular judge should be discontinued if justice is to be done. The Registrar of the Court should not be allowed to play in the hands of sitting government. All the bar members and the media know well that which judge usually favours which party or government or military executive, therefore, the matters can be handled judiciously. One can simply suggest that:
The Commission or Council for selection of judges is already in place but we can go a step further. The Commission can advertise open for the posts and vacancies of Additional Session Judges and judges of the High Courts in the respective provinces, stating the experience and the age and other necessary qualifications and should receive the applications directly with ORIGINAL testimonials. The appointments of judges in the high Courts in UK used to be made by invitation only but after 1997 they have also adopted the way of open advertisements.
All citizens of Pakistan should be eligible to apply. The Commission should scrutinize minutely all the applications for the respective posts and narrow down the list of would be selected people. Special efforts should be done to check applicant’s reputation for skill, knowledge and integrity, political affiliations or inclinations, property & assets in their names; college, university and police records; candidates own characters and of their spouse & kins and any other information which may be required from time to time.
The Commission should accomplish the above jobs by way of consultation. Consultations with the judges before whom the candidate used to appear, senior colleagues in legal profession, senior bar members and office bearers are important in this respect. The Commission members will take minutes all such consultations and, reduce into writing and will make a part of the file.
Reference or ‘safarish’ from or connection with any political or military circle should be considered a disqualification straightaway.
After making selection of suitable persons, at one time the Commission would forward only one name for one post to the chief justice. If he has any reservations or diverse and dissimilar knowledge about that name, he will send it back to the Commission with reasons in writing. The Commission will then reconsider the reasons sent by the CJ and the record collected by them before proceeding further. To reach the conclusion, the CJ and the Chairman of the Commission will sit down together and sort out truth from the record.
Regarding character, experience, affiliations or backgrounds, only written or published and duly authenticated reports from various departments would be discussed from both sides. No hearsay or oral intelligence reports should be considered.
Even then if the matter is not sorted out, it will be referred to a 5-member routine bench of the Supreme Court, not specially constituted, and their decision will be final.
The real job is to be done by the Commission. The constitution should be suitably amended that the president or governor has nothing to do with these appointments. Recommendations can directly be sent to the Chief Justice of Pakistan for approval and onward forwarding for issuing of appointment letters by the Ministry of Law Affairs.
If for some reasons it is not expedient or convenient to make above arrangements, then make the president bound to make appointments of judges only on the recommendations of the Commission aforementioned above.
The judicial magistrates, district magistrates or civil judges who simply work as courts because they are from District Management Group (popularly known as CSPs) or they are members of provincial civil service (commonly known as PCS officers), or other lots of tribunals who have been directly appointed by the political governments or president or martial law chief executive should not be allowed to work as courts henceforth.
The procedure for selecting District Judges, magistrates, tribunals, additional session Judges (or civil judges if somewhere required) should also be the same as mentioned above.
Ministry of Law & Parliamentary Affairs be converted and renamed as ministry of Law and justice. The affairs of the Parliament, till any law is debated and finally passed, can be handled by the Assembly Secretariat or the Cabinet Division and when the law is passed, the subsequent handling would be done by the MOL&J.
Also be sure that the sitting CJs and judges of Supreme Court and High Courts shall continue to work in their respective capacities. They would be replaced if and when someone completes his tenure, or incapacitated or loses his seat on advice of the Supreme Judicial Council as per procedure laid down in the constitution or resigns himself.
To refine the above blueprint the government can ask our diplomats in developed countries to send briefs about selecting judges, their qualifications and training methods in their respective countries. Follow up of any good country would be appreciated by all. Our missions abroad should also send the ‘internal checks & balances’ prevailing within their respective judicial systems. It must be studied thoroughly to know that if we introduce the new system of making selections on merits then how the Commission or the Supreme judicial Council would control a judge who tries to cross his barriers.
There may be many additions or changes in the above outline. The typical bureaucracy may tell us about 99 negative points in above theme but one has to make his way through. They have been doing so with every past government including military rulers.
Valuable suggestions for improvements or changes are invited.
Be prepared to come forward. Be ready for changes.