No single body or person should have monopoly over appointment of judges: Barrister Salahuddin

Maqbool AhmedStaff Reporter

08th Sep, 2021. 07:53 pm

KARACHI: Barrister Salahuddin Ahmed is a name that can be cited for playing a pivotal role in uniting the lawyers’ community in Sindh on the key issue of elevation of a junior judge of the Sindh High Court to Supreme Court of Pakistan, and the appointment of incumbent Chief Justice of Sindh High Court as an ad hoc judge of the apex court.

As the president of Sindh High Court Bar Association, Barrister Salahuddin has led the bar bodies of the province in raising lawyers’ voice against what they call violation of seniority principle in elevation of high court judges to Supreme Court of Pakistan.

Judicial Commission of Pakistan, led by the Chief Justice of Pakistan, is scheduled to meet in Islamabad on Thursday to approve elevation of another high court judge to Supreme Court. Bol News on this occasion interviewed Barrister Salahuddin Ahmed to have a clear understanding of the issue of recent elevations and appointments to superior judiciary

Bol News: Should executive have any say in appointment of judges to high courts and elevation of judges to the Supreme Court?

Barrister Salahuddin: Yes, but role of executive should not be a decisive role. Ideally, in the appointment of judges, there should be meaningful input of not just judiciary but also of executive, parliament, bar & even civil society. The role of a constitutional judiciary is not merely a technocratic legal function but one that involves a deep understanding of the different forces within the society and how to balance them. It is not only judges and lawyers that have a stake in judicial appointments but all of society and so it is correct that they (and their representatives) should also have a say.

Bol News: Which of the following models of appointment/elevation of judges of superior judiciary do you think was or is the most appropriate; the one in practice before the ‘judges case’ or the one that was adopted after it or the current one? Also, What are the merits and demerits of the above three procedures.

Barrister Salahuddin: No model is perfect. Before the Judges case, the executive enjoyed the most powers. That led to many purely political appointments which was bad for the system.

The system adopted after the Judges case led to predominant role of CJP. That led to nepotism and arbitrariness. Comparatively, I think the model of Judicial Commission & Parliamentary Committee introduced by 18th Amendment (but before 19th Amendment) and distortions wrought by SC judgments such as Munir Bhatti etc was better. No single body or person should have a monopoly or outsize influence over appointment of judges. However, there are improvements possible in that model too. For example, I think there should have been greater representation of bars & civil society in the Judicial Commission. Also, I think the JC should frame rules to structure the method and process through which it appoints judges so allegations of favouritism can be ruled out.

Bol News: The judgment of ‘judges case’ gives the impression that the judiciary (bench and the bar) was not satisfied with the role the executive had in the appointment of judges and through that judgment it gained decisive role in the appointment of judges. Do you agree with this point of view?

Barrister Salahuddin: That is correct. But by completely excluding role of government and parliament, a judicial hegemony has been created which has not been healthy either.

Bol News: The critiques of Lawyers’ reaction to the recent elevation of some judges of the high courts to the Supreme Court say that same was done soon after the restoration of Iftikhar Chaudhry as Chief Justice of Pakistan but no such reaction came from the lawyers then. How would you respond to that?

Barrister Salahuddin: One learns through experience and trial and error. After all, it took the judiciary 40 years to come up with the legal principles of primacy of CJ & seniority rule that it laid down in Al Jehad (Judges case) and Malik Asad Ali.

Bol News: Do you think only the Chief Justice of Pakistan as chairman of the Judicial Commission of Pakistan should have the sole right to initiate the process of appointment to the superior judiciary?

Barrister Salahuddin: No. I think it is contrary to letter and spirit of Article 175-A which gives all powers of appointments to JC as a whole and not to the CJP in particular. This distorts the system by giving the CJP power to screen and exclude potentially excellent candidates by simply not nominating them for consideration. All members of JC should have the right to nominate candidates for consideration of entire JC.

Bol News: Instead of challenging the rules of the Judicial Commission which gives sweeping powers to the Chief Justice of the Supreme Court in the matter of appointment of judges, why do lawyers often resort to boycotting the judicial proceedings which ultimately affect the litigants?

Barrister Salahuddin: Because CJP also has the solo power to constitute a bench comprising judges of his particular choice to hear any matter. This effectively gives him power to predetermine outcomes to legal disputes which is against the scheme of the constitution. This is one of the others (excessive) powers & discretion to CJs that the Bars feel need correction.

As such, the Bars feel that in such matters that go to the heart of judicial power and discretion (ie the power to appoint judges) there is often strong resistance to giving up, it is not always sufficient to simply file a case but also to utilise various forms of protest and displays of the opinions of the legal fraternity and the public. One of the forms of protest is boycotts which although causes some harm to litigants, but is nonetheless for their ultimate benefit.

Bol News: As the president of Sindh High Court Bar Association, what improvement would you suggest in the process of appointments to superior judiciary?

Barrister Salahuddin: This is a complicated exercise requiring careful deliberation. We have some detailed suggestions in this regard which we have prepared after much effort and comparisons with foreign jurisdictions. We have on several occasions asked the JC to hold a consultation/seminar with relevant stakeholders including bars so that such ideas can be exchanged and debated but – so far – with no response. The AG has written a letter to the PBC & SCBA inviting suggestions in this regard but it seems that is a pointless exercise if the majority of the JC is adamant in driving through appointments as it likes and is not prepared to postpone ongoing appointments.

Bol News: How do you expect the lawyers’ community to react if the Judicial Commission persists with its current mode of appointment of judges to the superior judiciary?

Barrister Salahuddin: We will continue to struggle till the time any spectre of favouritism or nepotism in judicial appointments is removed.

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