Despite the fact that all the three known models of judicial appointments - namely, the politicized, judicialized and institutionalized models - have been practiced in Pakistan, our judicial system is yet to achieve the requisite standards of judicial independence, thanks to the protracted judicial and executive duel, flawed intentions and attitudes of the constitutional contributors.

Under the notions of separation of powers and judicial independence, various judicial systems across the world have devised different models for the appointment of judges. However, our judicial system could not meet the standards of the separation of powers and judicial independence.

Within our democratic system, the judiciary is the final custodian of constitutionally guaranteed fundamental rights as well as the final check against excesses of administrative and legislative authorities. The history of Pakistan is replete with judicial and political duel over the constitutional process of judges’ appointments so as to have final say in this respect.

Such constitutional and executive efforts could be studied in three phases. The first phase began from the passing of the Constitution of the Islamic Republic Pakistan in 1973 (Constitution) till the announcement of the Supreme Court judgement in Al-Jehad Trust case in 1996. The second phase started from 1996 and lasted till the passing of 18th Constitutional Amendment Act while the third phase is underway.

In the first phase, the politicized model was experienced in Pakistan. In this model, judicial appointments are made by the head of the executive or a minister with the portfolio of law and justice without any involvement of the judicial high-ups. This system is based on a political mechanism with minimal involvement from judicial and legal circles as was the case in Pakistan where the system was exploited by the executive in its favour and the social and democratic norms as well as respect for judicial independence were ignored. Such a system could work only in societies where there is highly improbable for the executive to decide otherwise than on merit.

Subsequently, the “judicialized model” under the second phase of the country’s judicial history remained in working. In this model, the real power rests in the hands of the judicial consultees though the executive has formal power over appointments as it is based on the process of consultation with judges or legal experts. In this model, judges may evaluate the practicing skills of advocates; however, they cannot judge their judging abilities. The politicized and the judicialized models stand on opposite poles with one commonality, i.e., both tend to grant hegemony to one institution or person in the judicial appointments process.

As the executive’s control over the judicial appointments was unwelcomed, the Supreme Court passed a hallmark judgment in 1996 in Al-Jehad trust case. As a reaction to the executive’s misuse of the constitutional provisions, the Supreme Court gave a new dimension to the constitutional provisions, and limited the untrammeled executive powers over the judicial appointments.

The process of appointing judges before the traditional or pre-18th Amendment era gave the judiciary clear dominance over regulating the judges’ appointments. The Supreme Court’s interpretation of the constitutional provisions resulted in the power of appointment fall into the hands of the Chief Justice of the Supreme Court, thereby depriving the legislature and the executive of playing their respective meaningful roles in such appointments.

As a consequence, such way of appointments lacked all the required checks and balances. However, the 18th Amendment changed this state of affairs and gave the Parliament a role in judicial appointments by establishing the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee.

Contrary to the judicialized model, the “institutionalized or professionalized model” is based on a system of independent judicial appointment commissions who make appointments from a pool of eligible candidates. In this model, although the final appointment is made by the executive, it possesses minimal or no discretion to deviate from the list finalized by the commission (Jowell 2010, 4-5).

The question of where the balance of powers should lie between different pillars of state is relevant to countries across the Europe. Recent litigation indicates growing division within the European countries regarding how exactly power should be allocated between the legislature, executive and the judiciary. The judicial independence is even more essential to nations like Pakistan. The constitution prescribes tracheotomy of powers of all governmental organs and ensures limits to their powers by providing the system of checks and balances. Such scheme of constitutional powers and checks and balances could work only when the judicial organ is independent in its affairs.

Aristotle rightly called “justice” the virtue of virtues as judges are expected to do justice without fear or favor, affection or ill will.

Socrates counselled judges to hear courteously, answer wisely, consider soberly and to decide impartially. These judicial virtues are all aspects of judicial diligence. It is appropriate to add to Socrates’ list the virtue of acting expeditiously, but diligence is not primarily concerned with expedition.

On the other side, the Constitution speaks about the experience, citizenship and age but does not require for appointment of men of high integrity, virtue, transparency and impartiality as judges of Supreme Court and High Court. Articles 177 and 193 of the Constitution only speak about citizenship, age and experience as eligibility for the appointment of judges whilst Articles 62 and 63 thereof contain the qualifications and disqualifications for the membership of national or provincial assemblies, respectively. Can these standards not be used as a rule for judges’ appointments?

This in turn means that high integrity, impartiality, virtue and standards under Articles 62 and 63 of the Constitution are not required for the appointment of judges. Question then arises “Can a mere concentration on age, experience and citizenship ensure the independence of judiciary and administration of justice?”

Therefore, there is a need for amending Article 193 of the Constitution and an addition of the eligibility criteria as given in Articles 62 and 63 regarding judges’ appointments so as to ensure the independence of judiciary and impartial administration of justice. In addition, the constitutional amendments provide for the constitution of JCP and Parliamentary Committee. JCP shall nominate a name for the appointment as judge of Supreme Court in majority after evaluating professional competency and antecedents.

With the passage of time, the addition of Article 175A via 18th Amendment to the Constitution has appeared to be a disaster regarding the appointment of Supreme Court judges due to the involvement of Pakistan Bar Council nominee as JCP member. The reason is the PBC’s office-bearers are “selected” on political basis, not on merit. At least, now, the method of assessment should also be quantified allowing JCP members to assign scores to each candidate against factors like professional qualifications and experience, high integrity, impartiality, independence, intellectual capacity, analytical skills, efficiency, professional conduct and behavior.

In the words of the Grand Chamber of the Strasbourg Court itself, “the notion of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law”. The same applies to the “importance of safeguarding the independence of the judiciary”.

Thus, safeguarding the independence and impartiality of the judiciary is an indispensable aspect of upholding the rule of law, and is required to hold State authorities accountable where their actions jeopardise or run contrary to the constitution and law.