ISLAMABAD: Justice Athar Minallah of the Supreme Court on Tuesday observed that the independence of the judiciary could be secured, advanced and protected only when the process of appointment of judges at each stage was transparent and free from unfettered discretionary exercise by individuals.

“The mode of appointment, exclusively controlled and regulated by the judges, particularly the chief justice, had eroded the independence of the judiciary,” Justice Minallah said in a 36-page dissenting note he wrote while accepting a set of appeals.

The appeals were brought against the May 10, 2022 Peshawar High Court (PHC) judgement, that had set aside the Jan 19, 2022 recommendations by the Parliamentary Committee (PC) regarding the appointment of judges to the PHC and ordered issuance of notifications in accordance with the Jan 5, 2022 Judicial Commission of Pakistan (JCP) proposal to elevate six individuals to the PHC as additional judges.

A three-judge Supreme Court bench consisting of Justice Munib Akhtar, Justice Muhammad Ali Mazhar and Justice Minallah had rejected the appeals by a majority of two to one.

Justice Minallah regrets SC’s repeated validation of tampering with constitution

The PC had recommended the names of five district and sessions judges — Fazal Subhan, Shahid Khan, Khurshid Iqbal, Kaleem Arshad and Asim Imam — for the post of additional judges of the PHC keeping in view their seniority and competence.

In his dissenting note, Justice Minallah said each appointment should be seen to have been made on merit, adding that independence from other branches of the state was not sufficient to secure and advance the independence of the judiciary, unless internal and institutional independence was also ensured.

The unaccountable self-governance system and exercise of unfettered powers by individual judges in relation to the process of appointment of judges had a chilling effect on the internal independence, he added.

“A deeply entrenched institutional culture that does not value independent judges enables the power-wielding judicial hierarchy to flout merit, if the process is not transparent,” Justice Minallah said, adding that in such an eventuality, the system loses its capability to ensure that the judges are appointed on merit i.e. the best amongst the eligible persons.

“The unfettered power of the chief justice to identify eligible persons in the absence of objective pre-determined criteria by no stretch of imagination promotes or advances independence of judiciary,” he emphasised.

He regretted that authoritarian and oppressive regimes, pursuant to the abrogation or subversion of the Constitution for most of its history, would not have been possible without the collaboration of the judiciary, particularly the Supreme Court.

Despite being a creation of the Constitution, he added, the apex court repeatedly validated acts of high treason and allowed the legitimised usurpers to tamper with the Constitution.

“The dissolution of parliament under Article 58(2)(b), rather than being resisted, was endorsed by the apex court. The chosen representatives fell prey to the mischief under Article 62(1)(f) and many were disqualified for life even for trivial errors as omission to declare details of an expired identity card. Three elected prime ministers and scores of chosen representatives were disqualified,” Justice Minallah regretted.

Published in Dawn, September 27th, 2023