JUDICIAL INDEPENDENCE
The 1973 Constitution prescribed a formula for the appointment of judges that was heavily weighted in favour of the executive. When the Eighth Amendment passed by Zia shifted the effective powers of the executive to the President, it was to this office holder that the Chief Justice of the Supreme Court was required to recommend a list of nominees.[377] However, as greater affective powers were seized by the Prime Minister of the 1990s, a terrain of acute and persistent struggle was created between the elected executive and the judicial branch.
Both of the elected Prime Ministers in the 1990s showed great inclination to flout established conventions for maintaining judicial independence. Most notable in this regard is Benazir Bhutto’s disregard for the constitutional tradition of appointing the senior most judge on the Supreme Court as Chief Justice; she instead appointed Justice Sajjad Ali Shah and thereby superseded two more senior judges in 1994. Benazir had Shah’s lone dissent against the restoration of the first Nawaz Sharif government as indication of loyalty to her party. In his dissent he famously referred to the ethnic divide in the court by which Punjabi politicians were restored and Sindhi’s disqualified,[378] thereby objecting to the different treatment meted out to Sharif and Bhutto respectively.
In spite of the blatant favouritism shown towards him, it was also widely rumoured that the Bhutto regime intended to keep Shah deeply beholden to it and that Shah had signed a prospective letter of resignation to be used at some future date.[379] Nonetheless, having earned the ire of other judges on the bench, Shah soon found himself in the unenviable position of leading a court that enshrined principles of appointment that starkly illustrated the irregularity in his own appointment process.
In her second term in office, Benazir Bhutto was keen to find and appoint other judges who were her sympathisers. Rushed attempts to do just that led, however, to legal challenges being launched against these appointments. One consequence was the Al-Jehad Trust case, in which the Supreme Court elaborated key principles to be abided by in the appointment process.[380] Although initially reluctant, Shah ultimately signed the majority opinion authored by Ajmal Mian J.
Al-Jehad interpreted the stipulation of Article 175 that the President make judicial appointments ‘after consultation’ as meaning that ‘the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness’. It also held that the ‘opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President.’ The Court further granted veto powers to the concerned Chief Justices in the matter of appointment of judges of superior courts. The judgment enshrined the principle of seniority for elevation to the office of Chief Justice, as well as limiting other possible violations of tenure. These stipulations and conditions became standard bearers for the establishment of ‘judicial independence’ into the future.
Bhutto felt herself betrayed by the Al-Jehad judgment and this opened conflict between her and President Leghari as well as with Chief Justice Shah. Citing this and additional grounds of governmental breakdown, in 1996 President Leghari proceeded to order her government’s dissolution under Article 58(2) (b). The next government of Nawaz Sharif also went against the spirit of the Al-Jehad judgment in not finalising appointments recommended by Chief Justice Shah.
Surely not without the use of inducements, but also as a continuing consequence of his initial appointment, there was an effective mutiny against the Chief Justice within the Supreme Court.
Sitting in regional benches of the Supreme Court, two judges accepted petitions challenging Shah’s continuation in office in the aftermath of the Al Jehad judgment and granted an interim order suspending him from performance of his functions.[381] Shah refused to accept these restraints. He also widened the breach between himself and Prime Minister Nawaz Sharif by issuing contempt of court notices against Sharif and some of his ministers. Ultimately, the Supreme Court was itself physically assaulted by members of Sharif’s PML Party in November 1997.This attack did not incite any popular support for the institution and thereby presents a stark contrast to the ways in which a large public came out in support of Iftikhar Chaudhry a decade later. More importantly here, the public support of Chaudhry allowed the judiciary to build upon the principles elaborated earlier in Al-Jehad.
Interestingly, the 2007 declaration of emergency provided a necessary pivot to regaining judicial power of this sort. When emergency was declared on 3 November 2007 a seven-member bench of the Supreme Court convened an emergency meeting and declared Musharraf’s acts illegal. This changed thereby the assessment, upon later review, of the act of the many judges who swore upon the second PCO oath that Musharraf administered under that Oath of Office (Judges Order 2007). In the Hasnat Khan case, the act of taking the oath was given the status of being a nullity in law. The court, once again headed by Chief Justice Chaudhry, declared that the judges who had taken an oath under the second PCO would not only cease to hold their office but that the judgments that they had authored would also be nullified. Furthermore, revisiting the Al-Jehad case for support, they decided that the appointments undertaken whilst Abdul Hameed Dogar was the Chief Justice (3 November 2007—21 March 2009) were in violation of the strict requirement for meaningful consultation with a validly-appointed Chief Justice.[382]
The popular reaction to this case was mixed, and some critics assailed the courts for innovating an extra-constitutional mechanism for retiring judges from service.
Undeterred, the Chaudhry court went even further in bolstering its powers over appointments. The Eighteenth Amendment Act of 2010 had introduced a new Article 175A to the Constitution, which would provide for a Parliamentary Committee and a Judicial Committee to operate in tandem to vet nominations to the Higher Judiciary. The Court thus undertook to review a constitutional amendment and direct the legislature to reconsider its ambition to be a part of this process. On the basis of upholding judicial independence, a principle that was part and parcel of a basic structure doctrine not fully avowed to this point, the Court under Chaudhry referred the matter back to Parliament for ‘reconsideration’, with recommendations regarding the changes that need to be introduced to the appointment process under Article 175A. There was more or less a wholesale incorporation of these recommendations in the new Article 175A that was introduced through the Nineteenth Amendment Act in 2011. While the committee structure still stands, the balance has tipped towards the judicial branch in terms of effective power.The new article has been the subject of substantial litigation on the issue of the exact division of power it imagines between the Judicial Commission and the Parliamentary Committee, and their relationship with each other.[383] In cases that have arisen under Article 175A, it seems to be that the legal aptitude and suitability of the proposed candidate will be exclusively considered by the Judicial Commission, while the Parliamentary Committee’s ambit is limited to considering the integrity and personal conduct of the candidate. Moreover, denial by the Parliamentary Committee of a recommendation made by the Judicial Commission requires ‘compelling reasons based on irrefutable evidence against the nominated person’, which can further be subjected to judicial review[384]
As a closing note on the issue of judicial independence, it is necessary to point out that the record of appointment of women to the highest courts is hugely inadequate.
In fact, while five women were appointed during Benazir Bhutto’s first term as High Court judges in benches across the country, all of them failed to be appointed as either Chief Justices or be elevated to the Supreme Court. In at least one instance, a court case ensued on the basis of alleged gender-based discrimination. In two others, significant meddling such as in the appointment of these judges to alternate tribunals against their wishes interfered with their career trajectory within the superior judiciary.[385] Members of the higher judiciary have remained exceedingly silent in the face of criticism. Some legislative measures have been proposed but not adopted for introducing a gender quota for appointment to the higher benches. However, where the higher judiciary has assumed powers of appointment for itself, it will have to be the forum to provide guarantees that equity concerns such as this will be addressed.