Let’s walk through the process for appointing superior court judges devised by Raza Rabbani’s Parliamentary Committee on Constitutional Reforms (PCCR). A vacancy on the Supreme Court (SC) arises following the retirement of one of its 17 permanent justices.
Somewhere, six men with grave expressions sit down to decide who they will recommend for the job. Seated at the table are the chief justice (CJ) of Pakistan, the two senior-most judges of the SC after the CJ, the attorney general, the federal law minister and a senior advocate of the Pakistan Bar Council (PBC).
The nomination will be decided by a simple majority, i.e. four votes.
See a problem? Do the math. There are three people from one institution, the SC; two from the government of the day; and a practising lawyer in the good books of the PBC.
The SC wants a particular judge; the government another (sound familiar?) — now what? Mr Lawyer-from-the-PBC becomes kingmaker, or judge-maker, as it were. He can either vote with the three justices, rendering their candidate the nominee for the SC slot, or he can vote with the government representatives and effectively block a nomination.
Why should this be? Why should our superior judiciary be shaped by some lawyer with a swing vote? What legal or constitutional philosophy demands this?
Work through the suggested appointment process further and you’ll see just how exalted Mr Lawyer’s position is.
The recommendation of the judicial commission — the one in which Mr Lawyer holds the crucial swing vote — will have to be approved by a parliamentary committee. Aha, you say, there you go, Mr Lawyer’s decisive vote can be thwarted at this stage. But Raza Rabbani and his elves have done the opposite.
The parliamentary committee which must approve the judicial commission’s nomination is to consist of eight members. Here’s the problem: to reject a recommendation, six of the eight members must vote to do so (a staggering 75 per cent; the constitution can be amended by a mere, in comparison, two-thirds of parliament).
More dauntingly, the committee will be split evenly between the government and opposition and it will have to reject a nominee within 14 days. Six out of eight members of a committee divided between the government and the opposition agreeing on anything in 14 days? You must be kidding.
So, in many cases, Mr Lawyer could emerge the real judge-maker.
There is a further problem here. Why should the people, via their elected representatives, be constitutionally marginalised in the process that determines which men will don black robes and decide what the law of the land is? Is that really what a democracy should aspire to, the law interpreted by a thoroughly unrepresentative institution?
Rabbani and his elves have, of course, not screwed up. Set against what is best from a structural, and perhaps even democratic, perspective are two factors: the weight of history and the politics of the present.
Ideally, you would want your judiciary to be chosen by those you elected to represent you. That sounds democratic: why would you want someone who isn’t accountable to you to select who determines what law you are held accountable to?
But the problem is the elected representatives. They have so routinely tried to stuff the judiciary with their favourites, often with little regard for merit or even a candidate’s basic legal abilities, that it is against the elected representatives that the system needs to be defended. So rather than having a more democratic court, the people must accept a less democratic court.
And there is also some logic to giving Mr Lawyer the swing vote on the judicial commission, even if it isn’t very democratic.
In a system of checks and balances/trichotomy of powers/whatever you want to call it, the executive always has a tendency to try and dominate the judiciary. It’s a structural thing and if you were the executive, you would do it, too.
Nobody likes having someone tell them what they cannot do. That is the case with the powerful executive, too: it tries to avoid being told what it can’t do by stuffing the judiciary with friendly faces.
So when trying to design a durable, democratic system you want to avoid giving all the power to appoint judges to the executive. But neither can you hand over all that power to the judiciary because that would make the judiciary an insular, virtually unaccountable institution.
What do you do? You introduce a third player to break an impasse whenever it occurs. And Mr Lawyer-from-the-PBC may actually be a relatively decent impasse-breaker.
The Pakistan Bar Council is a statutory body that issues lawyers their licenses and regulates the profession, including imposing a code of conduct. A senior advocate nominated by the PBC is bound to know, or can easily find out, the bona fides and abilities of any candidate because the candidates are almost always going to be judges or high-profile lawyers and hence known to the PBC or its representative.
There is, of course, the possibility that Mr Lawyer may not vote with his conscience. Would he really want to cross three justices of the SC, including the chief justice, when he’s likely to have some business before them soon? Or would he be able to resist government pressure to side with it and block a nomination it doesn’t like by splitting the vote 3-3 on the judicial commission?
(Already the present government stands charged with trying to increase its influence in the PBC and all subsequent governments will have a similar incentive to shower attention on that body.)
Yet, in practice, Mr Lawyer is likely to be a by-the-book guy. Potentially caught in the crosswinds of two mighty institutions, you would do the same too: focus on the qualifications and professional abilities of a candidate and ignore thorny issues about a candidate’s political, ideological and institutional persuasions. A single player with no backing from any major institution is always likely to act with caution and avoid controversy.
So the Rabbani committee may actually have set up a rather workable framework for judicial appointments.
It certainly isn’t the most, or even a very, democratic way of appointing judges but it does have the potential to generate spin-offs that are democracy-enhancing: the less the judiciary and the executive clash, the smaller the threat they collectively pose to democratic continuity.
Tailpiece: Rabbani has suggested that the PCCR’s proposals aren’t final and may be changed after canvassing opinion from the legal community. Whatever happens, the chief justice should not be given the casting vote in the event of a 3-3 tie in the judicial commission.
The three SC judges are likely to always vote en bloc (would you vote against your boss?) thus all but guaranteeing three of the six votes on the judicial commission. Give the chief justice the tie-breaking/casting vote, too, and it would amount to letting the SC decide for itself who it will nominate to the bench. A hermetically sealed judiciary of that sort would be contrary to the democratic project.
The beauty of the Rabbani system is in its messiness. With neither the judiciary nor the executive dominant over the other, they will have to learn to get along. Isn’t that a central idea of a constitutional democracy?