By Manahil Jaffer

Pakistan’s judiciary, often revered for its independence, is currently at the center of a heated debate. The focus of this debate is a series of proposed constitutional amendments, primarily concerning the tenure of the Chief Justice of Pakistan and the role of the parliament in judicial appointments. Critics argue that these reforms undermine the principle of judicial independence, while supporters believe they are essential for establishing meritocracy, accountability, and efficiency in the country’s legal system.

The proposed reforms are not unprecedented. In fact, more than 77 countries worldwide have separate constitutional courts, and in many of these nations, judges are appointed by elected representatives. The involvement of the legislative branch in the appointment of judges is not an infringement on judicial independence but rather a mechanism to ensure accountability and a more balanced system of governance.

The Tenure Debate

One of the key proposals under these amendments is to fix the tenure of the Chief Justice of Pakistan to a three-year term. Historically, the tenure of the Chief Justice has been determined by the age of retirement, which currently stands at 65. As a result, many Chief Justices serve for only a brief period, sometimes as short as a few months, leading to instability in judicial leadership.

Fixing the tenure of the Chief Justice to three years will provide much-needed consistency in the leadership of the judiciary. This proposal has become contentious, with some arguing that it compromises the independence of the judiciary. However, this change is necessary to ensure that the judiciary is led by individuals who are not merely selected based on seniority but rather have the time and ability to institute long-term reforms and provide consistent guidance.

In the current system, the principle of seniority often overshadows meritocracy. A judge who may have a few months left before reaching the retirement age can ascend to the position of Chief Justice, leaving little room for significant reforms or decision-making. By setting a fixed term for the Chief Justice, Pakistan can benefit from stable judicial leadership capable of implementing reforms, thus making the judiciary more effective and efficient.

Meritocracy vs Seniority: Reforming the Appointment System

Another major point of contention in the proposed judicial reforms is the principle of seniority, which has been the foundation for judicial appointments in Pakistan. This practice ensures that the most senior judge automatically ascends to the position of Chief Justice, regardless of merit, past performance, or vision for judicial reforms.

This seniority-based system has been criticized for promoting inefficiency and ignoring merit. Many well-qualified judges are often overlooked in favor of their senior counterparts, leading to the appointment of individuals who may not necessarily be the most suited for the highest judicial office. Moreover, this system offers no room for accountability. While elected representatives face regular elections and are held accountable by the electorate, judges, especially in higher courts, remain largely unaccountable to any authority.

In democracies around the world, judicial appointments often involve parliament or other elected bodies to ensure that judges are not only qualified but also aligned with the broader vision of justice that serves the people. For instance, in the United States, Supreme Court judges are nominated by the President and confirmed by the Senate. In several European countries, constitutional courts are established where parliament has a say in judicial appointments. Such involvement is not seen as an infringement on judicial independence, but rather a balance of powers ensuring that the judiciary is representative of democratic values.

By introducing merit-based appointments and increasing parliamentary involvement in the process, Pakistan can ensure that its judiciary is more aligned with the needs of the people and not beholden to internal hierarchies that promote inefficiency.

Judicial Independence vs Judicial Accountability

One of the most recurring arguments against judicial reforms in Pakistan is the notion that they undermine judicial independence. Opponents of the reforms often invoke the “basic structure doctrine” of the Constitution, which they argue protects the judiciary from interference by other branches of government.
However, this argument misses a crucial point: judicial independence is not the same as judicial unaccountability. While the judiciary must remain independent in its rulings and decisions, it should also be accountable for its efficiency, competence, and ability to serve the people of Pakistan. An incapable judiciary is far more dangerous than one that is perceived to be dependent on parliamentary oversight.

Judicial independence should not be used as a shield to prevent much-needed reforms, especially when those reforms aim to improve the overall functioning of the judiciary. Pakistan’s judiciary has faced criticisms for being slow, inefficient, and at times, inaccessible to the common citizen. According to data from 2023, there are tens of thousands of pending cases in the country’s higher courts, and this backlog continues to grow. If the judiciary is to fulfill its constitutional duty of providing justice, reforms must focus on improving its ability to deliver timely and efficient decisions.

Conclusion

The proposed constitutional amendments for judicial reforms in Pakistan, particularly regarding the tenure of the Chief Justice and the role of parliament in appointments, are not an attack on judicial independence. Rather, they are a necessary evolution of the legal system to ensure accountability, meritocracy, and efficiency.

Pakistan’s Constitution is meant to serve the people, and the judiciary, as an arm of the state, must also reflect this purpose. For too long, the judiciary has been held back by internal hierarchies, inefficiencies, and a lack of accountability. These proposed reforms are a step in the right direction, providing the country with a more effective, independent, and accountable judiciary that can meet the challenges of the 21st century.
Judicial independence is crucial, but it should not be wielded as a tool to obstruct necessary reforms. By raising the retirement age, fixing the tenure of the Chief Justice, and introducing merit-based appointments, Pakistan can ensure that its judiciary serves the people, not just the system. The time for judicial reforms is now, and they should be embraced, not resisted

*Opinions expressed in this article are the writer's own and do not necessarily reflect the editorial policy of The South Asia Times