Government of law or men?

Recent developments have rekindled the conversation around the appointment of apex court Judges. The question has become the talk of the town and has especially consumed our lawyers in the bar rooms. 'What is the most appropriate way to ensure transparent and undisputed appointments while not compromising the independence of the Judiciary?' 'Is the 18th amendment's procedure the answer or the incumbent Judicial Commission under the 19th amendment sufficient?' No one is sure. However, the passionate debate and constructive input from various academic circles is a welcoming sign for our chequered democracy. It also shows that people expect nothing short of 'absolute justice' from our Supreme Court Judges, even if it relates to their appointment.

The more inclusive and diverse procedure under the 18th amendment was nullified following the 19th amendment. The 19th amendment made the Judicial Commission the only relevant authority in appointing the Supreme Court judges and reducing the Parliamentary committee to a mere rubber stamp. Moreover, it also altered the composition of the Judicial Commission and added two more judges, thus, giving the Judges a 3/4th majority (6 to 9 members instead of 4 to 7) in the Commission. The reasoning behind the 19th amendment was correlated with the 'constitutional provision underpinning Judicial Independence. Thus, the veto of the parliamentary committee was considered a step in the wrong direction and was done away with. Although the 19th amendment was brought to solve the constitutional debacle, it left many reservations and didn't prove to solve the impediments to the independence of the Judiciary.

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Renewing a procedure similar to the 18th amendment cannot solve the problem either. Such a step can only lead to further increasing judicial activism and the Supreme Court striking down the amendment (slim chances of sending reconsideration this time). So, what is the possible way out? Or is there no way out left? Or has it become another non-negotiable challenge against our struggling system that is better left alone? In the United States of America, it is the sole discretion of the President to appoint the Supreme Court Judges and has been followed for many years successfully. This system was also injected into Pakistan (disregarding the parliamentary background). However, it did not prove to be a success and ended with a rift over the appointment between...