Not a good precedent - By Khwaja Ahmad Hosain - Monday, January 31, 2011

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THE Judicial Commission has determined the fate of 34 additional judges of the Lahore High Court. Ten judges were relieved of their duties while 24 were granted an extension for one year. Not a single judge was confirmed.These individuals were appointed on the recommendation of the current chief justice of Pakistan. None of the individuals he recommended merited confirmation as a judge of the High Court. If you pick 34 individuals for a particular post and after more than one year it is determined that not even one of them is fit for that office on a permanent basis, some soul-searching is called for.

In Pakistan, problems with judicial appointments led to judicial attempts involving strained interpretation of constitutional language to remove discretion and political interference. The changes brought about by the 18th and 19th amendments are an attempt to improve and streamline the process. Whatever their other merits, these changes do not envisage a process of public scrutiny or transparency.

All proceedings of the Judicial Commission and Parliamentary Committee are to be held in camera. In the latest decision, no one knows why these additional judges have not been confirmed. There may be some logic to this secrecy. We may not yet be ready for open scrutiny of decisions pertaining to judicial appointments. It would not encourage the best and the brightest to make themselves available.

However, in extending the `additional` status of 24 judges, the Judicial Commission has set a bad precedent. An additional judge of the High Court has no security of tenure. Without security of tenure, there can be no meaningful independence. An additional judge holds office for a prescribed period of time (usually not exceeding a year) and if the tenure is not extended, the judge automatically ceases to hold office. If, during that year, the judge fails to please the members of the appointing authority, the appointment is not made permanent and he can be removed.

A permanent judge has security of tenure and, under the constitution, can only be removed by the Supreme Judicial Council. The fact that the appointing authority is now comprised mainly of judges does not detract from this point. All it means is that rather than looking over their shoulders to certain political masters, these judges have to look over their shoulders to their masters in the Judicial Commission. This is bad for their independence and undermines confidence in the bench.

The whole system of `additional judges` appointed for a limited period of time is undesirable. It strikes at the root of judicial independence. Either you are good enough to be a High Court judge or you are not. Additional judges and permanent judges deal with the same kind of cases. Both are dealing with critical matters impacting the lives of citizens.

There is no system or established precedent of assigning only unimportant or trivial cases to additional judges. If any additional judge is not confirmed, a litigant who has had a case unfavourably decided by such judge will have the grievance that his case was decided by an individual who did not merit the position of a High Court judge.

In its latest recommendation, the Judicial Commission has not only endorsed this discriminatory categorisation but extended it for a further period for 24 judges of the Lahore High Court.

These 24 individuals will continue to serve as High Court judges. They will deliver judgements. But they will do so under a shadow. Litigants and lawyers will speculate as to why they were not confirmed. Was there a question mark over their integrity or competence?

Obviously, there was some difficulty which led the Judicial Commission to decide that they did not merit confirmation at the moment. Maybe the Commission simply felt it needed more time. It seems we will never know, and neither will the affected individuals. The lack of knowledge leads to unhelpful and harmful speculation.

Under the constitution, the appointment of additional judges caters for unusual and exceptional situations, either when an unexpected vacancy arises or when a permanent judge is temporarily absent. This is stated in Article 197. The process of additional appointments was never meant to be used wholesale to fill normal judicial vacancies. However, an unfortunate precedent has been established in Pakistan that all appointments of High Court judges are initially appointed as additional judges. This practice has no constitutional basis and the only real reason for it was that the political appointing authority wanted to retain control over the individuals they appointed. It is a practice which needs to be revisited.

If the logic for all appointments being only temporary appointments to start with is that performance needs to be monitored for a period before confirmation, then this in itself is objectionable. There is no concept of a judicial probation period either under the constitution or in any other recognised system of judicial appointments. How can you entrust an individual with the powers and discretions of a High Court judge if he is under probation?

By failing to confirm 24 additional judges and granting them an extension for only one year, the Judicial Commission gives the impression that it is seeking to retain control for a further period of time over these individuals. It undermines the position of these additional judges and compromises confidence in the judicial process before benches comprised of these additional judges.

On the one hand, these individuals are clearly good enough to carry on as High Court judges — hence the extension. On the other hand, they are not good enough to be confirmed as permanent judges. This constitutes a mixed and confused message.

The writer is a barrister who practises in Lahore.

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