The Parliamentary Committee on Constitutional Reforms is all set to recommend a new procedure for the appointment of judges of the superior judiciary in line with the Charter of Democracy (CoD) when it meets next week.
Sources in the committee said that the present constitutional procedure for the appointment of judges in high courts and the Supreme Court will be replaced by a better system, which is being practised in some developed countries, including the United States.
Interestingly, the judges’ appointment system is being reviewed by the parliamentary committee at a time when the country has just witnessed a serious controversy over the judges appointment with the executive trying to over-step its limits to have its choice judges in the superior judiciary.
The proposed system as is reflected in the CoD would involve the judiciary, the executive and the legislature to appoint judges in the superior judiciary in a transparent manner, ensuring that no individual has arbitrary powers in this regard.
Although the committee would give final shape to these recommendations, a source said that draft recommendations prepared by Senator Raza Rabbani, who is also head of the constitutional reform committee, in line with the CoD in 2008 is the most serious work done so far on the issue. The source said that these draft recommendations suggest that the chief justice of Pakistan would be appointed by the president after consultation with the commission to be constituted under the Constitution while judges of the Supreme Court, high courts and the Federal Shariat Court would be appointed by the president in consultation with the chief justice and the commission. Consultation with the commission shall be binding on the president.
The commission, as referred above, would be called the Judicial Commission of Pakistan and would consist of the chief justice (chairman), two next most senior judges of the SC, four chief justices of the high courts, a member of the Pakistan Bar Council, the president of the Supreme Court Bar Association in matter related to the SC, four president of the high court bar associations at the principal seats of the high courts in matters related to their respective high court, a MNA nominated by the prime minister, a MNA nominated by the opposition leader and four members of the Senate (one from each province to be nominated by the chairman Senate in consultation with the leader of the house and the leader of the opposition).
The commission shall forward a panel of three names in each vacancy (of a judge) to the prime minister, who shall forward one name to the joint parliamentary committee for confirmation of the nomination through a transparent public hearing.
The joint parliamentary committee shall comprise of 50 per cent members from the treasury benches and the remaining 50 per cent from the opposition parties based on their strength in parliament, to be nominated by respective parliamentary leaders.
After the appointment of the judges and their taking oath under the Constitution, taking of another oath subsequently (for example PCO) will automatically terminate the incumbent from the office of the chief justice or any other judge for such office as the case may be.
No change in the age of the Supreme Court or the high courts is expected. However, age for the appointment of high court judge would possibly be recommended to reduce from 45 to 40.
For the appointment of the acting chief justice, the senior most judge would be appointed as such. The ad hoc judges of the Supreme Court and additional judges of the high court would be appointed for a period not more than one year. The president’s power to transfer a high court judge from one high court to the other is also likely to be deleted.
The commission besides being involved in the appointment of judges, would also recommended to inquire into the conduct of a judge: a) If upon any matter inquired into by the commission there is a difference of opinion amongst its members, the opinion of the majority shall prevail and the report of the commission to the president would be expressed in terms of the view of the majority. b) If, on information received from any source, the chairman of the commission may or on the requisition of not less than one-fourth of the total membership of the commission, the chairman, shall direct the Inquiry Committee of the Commission to enquire into the capacity and conduct of a judge of the Supreme Court of high court as to whether he may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct.
On receipt of the report of inquiry committee the commission would consider the matter and make appropriate recommendations to the president. On receipt of the recommendation from the Commission to the effect that the Judge is incapable of performing the duties of his office or has been guilty of misconduct the President shall remove the judge from the office. A judge of the Supreme Court and high court shall not be removed from the office except as provided under this Article.
The commission shall issue a code of conduct to be observed by the Judges of the Supreme Court and high courts. Although the CoD also reflects on the setting up of a constitutional court, this proposal is not expected to get through the parliamentary committee owing to the changed situation following the restoration of the judiciary and because of the fact that the system of constitutional court is not practiced by most of the countries including the most developed nations.
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In the early eighties Michael Badnarik started his career as a computer programmer at an Illinois nuclear power plant. For the past twenty years he has continued this professional course, but during this time he became interested and frustrated with politics. As a result, in 1983 Badnarik began studying the IRS and then the constitution. He had since condensed his 18 years of research into a short eight hour course that he would teach in a lecture format. It included some of the fundamentals on our rights and the foundations of our republic. A video recording of one of the classes has been made and you can watch it here..
