A) Introduction
The judicial appointments' system which is currently operative in Pakistan1in effect yields a self
appointed judiciary. While it is true that this “old way”2 of appointing judges is in dire need of an
operational reform, it would be incorrect to assert that the method is obsolete and needs to be
dispensed with altogether. By providing an analysis of recent United States (US) Supreme Court
decisions and recounting crucial past experience gained from the Indian and American jurisdictions
in general3, this article shall seek to illustrate how a self appointed judiciary is increasingly relevant
in a democracy such as Pakistan.
B) Judicial accountability
Owen Fiss percives the idea of holding judges accountable as being inconsistent with the hallowed
norm of judicial independence. However, it must be noted from the outset that Fiss' assertion is not
well founded. This is because the norm of indpendence by no means seeks to confer an exclusive
right upon the judges which would effectively empower them to flout their prescribed constitutional
role of interpreting the law. Therefore, at a conceptual level, a mechanism in place that ensures that
judges do not abuse their prescribed fuction cannot be viewed as a limitation on the judiciary's
independence.
Having established that judicial accountability is a concept which is not only in complete harmony
with the doctrine of judical independence, but is also desirable, the more important question of how
exactly judges are to be held accountable needs to be addressed.
a) Prejudging the judges
On carrying out an institutional analysis of the Pakisani judiciary it becomes quite clear that the
necessary institutional safeguards, that are in place to ensure the independence of the judiciary,
make it imperative that an ex ante accountability of judical candidates is carried out. As this
prejudging of the judges is on any account the sole effective means of achieving a plausible degree
of judicial accountability, on the basis of which the judicial candidiates can ultimately be appointed.
b) How to prejudge the judges
The adoption or retention of an ex ante accountability mechanism for judicial candidates in a
particular jurisdiction should logically depend on whether the method under question has a real
prospect of success i.e, whether judicial accountability(which as has been previously noted is an
indispenible virtue) is actually attainable under the proposed method.
C)Why a self appointed judiciary is best suited for Pakistan
As a preliminary point it must be noted that it is correct that a self appointed judiciary is completely
“politically insulated”. And that under such a set up there is a looming threat of a judical coup
which is always present. So it must be conceeded that due to this flaw in the self appintment method
it is by no means the best way of appointing judges.
However, an analysis of the alternative appointments' methods, under which the threat of a judicial
coup is effectively eliminated, reveals that their adoption is ill advised due to their inevitable
unworkability under the Pakistani democratic system.
1 The fate of which is yet to be determined by the Supreme Court.
2 Michael Kirby's article
3 EXPLAIN WHY YOU'RE USING INDIA AND USA.
Hence, a self appointed judiciary, while certainly not the best option, is surely the preferred one as
it does serve the vital purpose of holding judges accountable.
