"Behind Closed Doors: The Absence of Transparency in Judicial Appointments in Pakistan"

The judiciary is often described as the cornerstone of constitutionalism, the forum where citizens seek refuge against executive and legislative excesses. Yet the credibility of a judicial system depends not only on the quality of its judgments, but also on the legitimacy of the process through which judges themselves are appointed. In Pakistan, despite constitutional amendments designed to refine the process, judicial appointments remain shrouded in secrecy. The absence of transparency fuels suspicion of favoritism and political influence, while simultaneously undermining the very independence of the judiciary it is meant to safeguard.

Under the Constitution of 1973, the appointment of superior court judges initially rested in the hands of the President, acting on the advice of the Prime Minister. This executive-heavy system quickly raised concerns of political interference. The Al-Jehad Trust case (PLD 1996 SC 324), more commonly known as the “Judge's Case,” marked a turning point. The Supreme Court held that judicial appointments required meaningful consultation with the Chief Justice, shifting the balance of power away from the executive. Although hailed as a victory for judicial independence, this shift concentrated decision-making within a small judicial elite, raising its own set of concerns.

To strike a balance, the 18th and 19th Constitutional Amendments established the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee on Judges Appointment. The JCP, chaired by the Chief Justice, comprises senior judges, bar representatives, and government officials. It recommends candidates for appointment, with the Parliamentary Committee tasked to review those nominations. On paper, this dual mechanism promised both independence and democratic legitimacy. In practice, however, it has done little to dispel the perception of opacity.

The JCP’s deliberations are conducted entirely behind closed doors. Decisions are rarely explained, and the Parliamentary Committee has seldom exercised real oversight. The Judicial Commission Rules 2010 provide no clear benchmarks for assessing candidates’ merit, integrity, or temperament. This lack of objective criteria has left the door open to allegations of nepotism, regional favoritism, and political influence. Unlike the civil service, which recruits through transparent examinations, judicial appointments depend on subjective and informal assessments. Aspiring judges are left uncertain about the standards expected of them, while the public doubts whether fairness begins at the very entry point of the judiciary.

The impact on public confidence is significant. The judiciary often rules on politically charged matters, such as the disqualification of elected officials or the dissolution of assemblies. Even when decisions are legally sound, suspicions about the appointments process taint their legitimacy. A judiciary that appears to be a product of personal connections rather than open evaluation risks losing the moral authority necessary to function as the guardian of the Constitution.

Other jurisdictions illustrate that secrecy is not the only option. In India, the collegium system has been criticised for its insularity, yet recent developments have forced publication of reasons for appointments and rejections. In the United Kingdom, the Judicial Appointments Commission openly advertises vacancies, holds structured interviews, and issues annual reports, ensuring accountability. In the United States, although the process is politicised, Senate confirmation hearings are public, allowing citizens to scrutinise judicial nominees. Each system has its flaws, but all demonstrate that independence and transparency can coexist. Indeed, openness strengthens judicial independence by protecting it from allegations of secretive bargaining.

For Pakistan, reform is both urgent and possible. Publishing clear selection criteria, providing brief reasons for appointments, and issuing annual reports would be a start. Involving bar associations and civil society in structured ways could strengthen legitimacy without compromising independence. Equally important is the need to pursue diversity in the judiciary, ensuring meaningful representation of women and minorities. Such steps would not erase all doubts, but they would represent a decisive move away from secrecy towards accountability.

A judiciary appointed in secrecy cannot convincingly claim to be the guardian of democracy. While Pakistan’s constitutional reforms have sought to refine the system, they have yet to embed genuine transparency. Experiences from other jurisdictions show that independence thrives, rather than diminishes, when the process is open. The real challenge for Pakistan lies in whether its judiciary is prepared to subject itself to the same standards of accountability it demands from the rest of the state. Without that, public trust will remain fragile, and the promise of constitutional justice will remain incomplete.

Bibliography

· Constitution of the Islamic Republic of Pakistan, 1973.

· Judicial Commission of Pakistan Rules, 2010.

· Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324).

· International Commission of Jurists, Authority without Accountability: The Crisis of Judicial Appointments in Pakistan (2011).

· UK Judicial Appointments Commission, Annual Report 2022–23.

· S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (Oxford University Press, 2002).

· Tariq Mahmood, Judicial Independence in Pakistan: A Critical Analysis (Lahore, 2017).