The appointment of judges is a crucial aspect of ensuring judicial independence and accountability. However, different countries have different mechanisms and criteria for selecting and confirming judges for their superior courts.
In Pakistan, the Constitution of 1973 lays down the procedure for the appointment of judges of the Supreme Court and the High Courts in Articles 177 and 193, respectively. These articles require the President to appoint judges “after consultation” with certain constitutional functionaries, such as the Chief Justice of Pakistan, the Chief Justice of the High Court concerned, and the Governor of the province.
However, what does “consultation” mean in this context? How much weight should be given to the opinion of the consultees? Who has the final say in the appointment of judges? These questions have been at the center of a long-standing debate and controversy in Pakistan’s constitutional history. One of the most important and influential judgments that addressed these questions was the Al-Jehad Trust case (1996), delivered by a five-member bench of the Supreme Court of Pakistan.
Background of the Case
The Al-Jehad Trust case (1996) arose out of a constitutional petition filed by a public interest litigation organization, challenging the validity of certain appointments and confirmations of judges of the High Courts made by the President without consulting or against the advice of the Chief Justice of Pakistan and the Chief Justice of the High Court concerned. The petitioners contended that such appointments and confirmations violated Articles 177 and 193 of the Constitution and undermined the independence of the judiciary.
The respondents, namely, the Federation of Pakistan and others, defended the appointments and confirmations on various grounds. They argued that “consultation” did not mean “concurrence” or “consent” and that it was merely an exchange of views or opinions. They also argued that the President had discretionary power to appoint judges according to his own judgment and assessment. They further argued that there was no objective criterion or standard for determining the fitness and suitability of a candidate for judgeship and that it was a subjective matter.
Key Points of the Case
The Supreme Court, after hearing both sides and examining various constitutional provisions, precedents, and comparative materials, delivered a unanimous judgment on March 24, 1996. The main points of the decision are as follows:
- The appointment of a judge has to be transparent so that the litigant public and people at large have faith in the independence of the judiciary.
- The appointment of a judge and the mode and manner in which he is appointed have a close nexus with the independence of the judiciary and cannot be separated from each other.
- The words “after consultation” employed in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, and consensus-oriented, leaving no room for complaints of arbitrariness or unfair play and involving participatory consultative process between the consultees and also with the executive.
- Constitutional conventions can be pressed into service while construing a provision of the Constitution.
- The Acting Chief Justice, however, is not a consultee as envisaged by Articles 177 and 193 of the Constitution and, therefore, the mandatory constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in cases where the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.
- The opinion of the Chief Justice of Pakistan and the Chief Justice of the High Court as to the fitness and suitability of a candidate for a judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.
- Consultation for the appointment/ confirmation of a Judge of a Superior Court by the President/Executive with the consultees mentioned in Articles 177 and 193 of the Constitution being mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted herein, would be violative of the Constitution and, therefore, would be invalid.
- If the President/Executive appoints a candidate found to be unfit and unsuitable for a judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, that will not be a proper exercise of power under the relevant Article of the Constitution.
Conclusion
The Al-Jehad Trust case (1996) is a landmark judgment that established the primacy and supremacy of the judiciary in the appointment of judges and the protection of judicial independence. It also laid down clear guidelines and principles for the interpretation and implementation of Articles 177 and 193 of the Constitution. The judgment has been widely cited and followed by subsequent judgments and has influenced the evolution of the judicial appointment process in Pakistan.
