IHC Mandates Judicial Review for Judge Appointments

The Islamabad High Court (IHC) has decided that the executive branch must consult the judiciary when appointing judges in the federal capita...

The Islamabad High Court (IHC) has decided that the executive branch must consult the judiciary when appointing judges in the federal capital, highlighting that judicial personnel should operate independently, fairly, and without outside interference.

Justice Babar Sattar issued the order in a comprehensive 73-page ruling concerning a petition submitted by Ammar Sehri, a member of the Islamabad High Court Bar Association. Sehri requested the implementation of Section 6 of the Islamabad High Court Act, asking the court to ensure that tribunals and courts within the Islamabad Capital Territory (ICT) are established with input from the IHC, as mandated by law and the National Judicial Policy, 2009, which was issued by the National Judicial Policy Making Committee (NJPMC). He also emphasized that courts and tribunals handling judicial matters in the ICT should not include judicial officers appointed on an ad hoc basis and should instead be staffed by judicial officers selected in consultation with the IHC.

In his decision, Justice Sattar stated that the federal government is not allowed to appoint or dismiss any official who holds judicial authority within the ICT without proper discussion with the judiciary, as mandated by Article 203 of the Constitution and the Supreme Court's significant Al-Jehad Trust case.

The judgment stated, 'The federal government may not appoint anyone to a position that involves the exercise of judicial power or the performance of judicial duties within the ICT except through a process where the judiciary has the leading role.'

The same rule applies to the transfer or dismissal of these officials prior to the completion of their designated term.

Justice Sattar further stated that the service terms and conditions for individuals carrying out judicial responsibilities must guarantee full independence from executive influence. He emphasized that no administrative body should modify or exert control in a way that compromises judicial neutrality. 'The service terms and conditions should not be altered to the detriment of an official performing judicial duties, nor should administrative power be applied in a way that interferes with their judicial functions,' the judge declared.

He instructed that when judicial duties are carried out solely within ICT, the IHC should be consulted, and when responsibilities go beyond ICT, the Supreme Court's input is necessary.

The proceedings started with a reference to Socrates, posing the question of whether a government can endure if "the rulings of the courts hold no authority and can be overturned and invalidated by individual people."

Justice Sattar compared the decline of judicial independence in authoritarian systems to Pakistan's constitutional history. Referencing Ernst Fraenkel's 'The Dual State: A Contribution to the Theory of Dictatorship,' he explained how Nazi Germany's 'Prerogative State,' governed by arbitrary authority, existed alongside a 'Normative State' that gave an appearance of legality to conceal totalitarian rule.

He cautioned that contemporary challenges to constitutionalism take the shape of "autocratic legalism"—a term coined by Professor Kim Lane Scheppele—where democratic and judicial procedures are exploited to undermine institutions and consolidate authority among a small group.

He noted that the IHC Act and Judicial Service Rules do not permit appointments through transfer or deputation, calling such methods legally unacceptable. 'Appointments made on a temporary or deputation basis while exercising authority under Rule 9 of the Judicial Service Rules,' he decided, 'have no legal foundation and threaten judicial independence.'

Citing comparative legal scholarship, such as Tom Ginsburg and Tamir Moustafa's "Rule by Law: The Politics of Courts in Authoritarian Regimes," along with the research of David Kosa and Katarína Šipulová on court-packing, the judge observed that authoritarian regimes frequently use courts to justify their authority and suppress opposition instead of safeguarding rights.

Justice Sattar emphasized that the constitutional history of Pakistan shows cases where parts of the judiciary were 'brought under control, involved, or failed' in maintaining the supremacy of the constitution. He stated that the IHC was therefore obligated to ensure that the use of judicial authority in Islamabad is not influenced by the executive branch.

As a result, the court interpreted Rules 9 and 30(3) of the Judicial Service Rules in a limited manner, stating that these provisions cannot be used to keep positions within the Islamabad Judicial Service filled through deputation. The IHC, he instructed, should take necessary actions to implement Section 6 of the IHC Act and make sure that all judicial personnel within its area of authority have job security and are directly under the court's oversight and management.

He concluded, 'This court must guarantee that the use of judicial authority inside the IHC's area of control stays free from executive influence, and that the judiciary is composed in a way that aligns with its constitutional duty—to safeguard and uphold citizens' basic rights without bias or intimidation.'

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