THE Judicial Commission of Pakistan is a constitutional forum which recommends a person be appointed as a judge of the Supreme Court. This commission comprises nine members ie, the chief justice of Pakistan, the four most senior judges of the Supreme Court, the federal law minister, the attorney general of Pakistan, a retired judge of the Supreme Court and a nominee of the Pakistan Bar Council.

Rule 3 of the Judicial Commission of Pakistan Rules, 2010, empowers the chief justice of Pakistan to first nominate a person to fill a vacancy. The commission then in its meeting analyses credentials of the nominee and if it finds him suitable for appointment, his name is sent to the parliamentary committee for confirmation and once confirmed, the president makes the appointment.

Unfortunately, a section of the press in the past had attributed ‘personal liking’ to some of the former chief justices with regard to the appointments of judges made in the Supreme Court. Under Rule 3, the chief justice of Pakistan initiates nomination for the consideration of the rest of the eight members who sit on the commission. These eight members also scrutinise the suitability of the nominee and decide either unanimously or by majority, whether the nominee is to be recommended. Once a nomination is initiated by the chief justice, he neither possesses sole discretion nor sole responsibility in making recommendation of a nominee as he being one member out of nine, holds only 11 per cent of voting power.

The remaining 89pc of voting strength is held by the remaining eight members of the commission. When the entire merit-based selection process comes under the scrutiny of not one but all nine members, then attributing ‘personal liking’ to the office of the chief justice could be just a figment of one’s imagination.

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It is also being suggested by some that the power of the chief justice to initiate nomination before the commission be diluted by empowering other members of the commission also to table names of the persons whom they consider suitable. Whether it would be a positive approach to do so, needs to be discussed here.

Attributing ‘personal liking’ to the office of CJ could be a figment of one’s imagination.

Suppose the chief justice’s power to initiate nomination is diluted by amending Rule 3 and the remaining four member judges are also empowered to nominate a person whom they consider suitable to fill the vacancy.

In that case, the majority membership would be performing the dual function of making nominations as well as evaluating their suitability. When there are more vacancies than one in the Supreme Court, say five, as they presently exist, and all five member judges of the commission were to table their nominations and finally if all five nominees are recommended, critics may again try to make the process of selection controversial by claiming that one nominee of each of the five members has been recommended.

The matter can be examined from another angle also. If the power to nominate a person for each vacancy is vested in more than one member of the commission, then, I am afraid, it may amount to dividing the members into competing groups and a member may get inclined to give preference to the nomination initiated by the group of his liking. Not only this, there would be more than one members of the commission who would be igniting the process of selection. All this will not be good for a disciplined functioning of the commission.

It would not be out of place to mention here that in the US, one person ie, the president, nominates a person for appointment to the supreme court and then such nomination is placed before the Senate for confirmation. For a judge to be appointed to the supreme court of the UK, the nomination also comes from one person, the chairperson of the Judicial Appointments Commission, which is then scrutinised by all commission members.

Read: Judicial Commission controversy

It can be seen that the power to nominate a person for appointment in both these countries also is given in the hands of one person only. In doing so, the principle of ‘unity of direction’ is applied, which is necessary in any healthy system of management. Here ‘unity of direction’ means direction given by a person of authority to the concerned forum to scrutinise the credentials and suitability of a particular nominee for appointment. This sole authority under Rule 3 is conferred on the person who for the time being is holding the office of the chief justice of Pakistan.

When a person is appointed as a judge of the superior court, his appointment is still attributed to the chief justice and that is why it is said that a chief justice is known by the appointments that have been made in his tenure. If more than one member is given the authority to nominate a person for appointment then a time may come in future, when the appointments to the Supreme Court would be made of persons who were not even nominated by the chief justice.

So which of the two procedures of making nominations appeal to reason? The existing one where under Rule 3, one member of the commission, holding only 11pc voting power, nominates a person and the rest of the eight members, possessing 89pc of voting strength, scrutinise the credentials of the nominee, or where a majority of members at the same time nominate a person and then also examine their suitability?

In my humble view it is better to leave the function of initiating the nomination in the hands of the person who for the time being is holding the office of the chief justice of Pakistan. The remaining eight members of the commission, without having any formal role of their own in initiating a nomination, will act freely and objectively in the process of scrutinising the credentials of the nominee.

The writer is a former justice of the Supreme Court of Pakistan.

Published in Dawn, August 23rd, 2022