One of the few positives to have emerged from the chaotically mismanaged Judicial Commission of Pakistan (JCP) meeting of July 28, 2022, is proof of how the system to evaluate judges simply doesn’t work. How it leads to perverse outcomes and illegitimate comparisons.
One of the judges recommended for elevation out of turn was Justice Naimat Ullah Phulpoto of the Sindh High Court. The number of judgments he had authored stacked up against everyone else was being considered. The ratio of his judgments, which were later overturned by the Supreme Court, were also compared with that of other nominees.
It was the subjective analysis by the participants of the JCP which exposed what the numbers hid. It was put on record by Law Minister Azam Nazeer Tarar as well as others that his judgments were comprised mostly of reproduction of evidence on record, with little by way of analysis. Where there was analysis, it was obtuse or erroneous. It was also pointed out that more of his judgments had not been overturned because the criminal causes which he would normally be presiding over became infructuous while awaiting a hearing at the Supreme Court, otherwise the numbers would have been far higher. By the time the appeal from many of Phulpoto’s decisions was actually heard, as noted Justice Sardar Tariq Masood, the alleged criminal would no longer benefit from it being decided. Because he was either already free to carry on living, or no longer living. The Supreme Court in those matters had simply decided that it was no longer an issue which needed adjudication and hence any errors remained uncorrected.
I have had the pleasure of attending Justice Phulpoto’s court in Karachi a few years ago. He was at the time the senior judge in a division bench, hearing criminal appellate matters. Through the day, he was hearing mostly appeals from decisions made by the lower courts rejecting bail applications. Lawyers were appealing to the division bench of Justice Phulpoto, arguing that their client had a right to bail on facts and grounds of each case.
Regardless of the strength of the arguments presented in appeal from the subordinate court, Justice Phulpoto did not reverse a decision in a single case that day. His best offer would be that he would dispose of the bail appeal before him, and direct the trial court to decide the matter within a matter of a few months if the case was already at trial, or he would give the investigators a fixed few weeks to finalise their inquiry if it was still with the police.
Lawyers quickly realised that arguing for their client’s liberty was fruitless. Once their case was called, they dispensed with any attempts at convincing the court and preceded directly to bargaining on time Justice Phulpoto would agree to bind the trial court or the police to decide or investigate the whole case in.
One lawyer turned up at the rostrum and began his arguments on merit. He was reminded by Justice Phulpoto, who had not heard his case yet, that the bench was disinclined with interfering in the investigation and perhaps he wanted to seek some directions to be given to the police.
The lawyer refused this offer, and asked the court to hear him as facts would bear him out.
The lawyer was representing a client who was behind bars because the police suspected that he was involved in a robbery. The lawyer had presented evidence of this being impossible to the subordinate court, and the court had not heard him or granted bail. His client worked in a junior administrative role at a bank. At the time the police alleged he was committing the robbery, he was at his desk in the bank, evidenced by CCTV camera footage showing him seated there.
At this point, Justice Phulpoto interrupted and opined that the camera footage could be from another point in time. The lawyer responded by allaying fears of any footage being doctored by putting forward a statement of the bank manager, verifying that the time stamp on the recording was accurate.
The lawyer further argued that his client could be seen typing on his keyboard in the CCTV, and this was backed up with the bank’s computer records which reflected his login being used at that point in time from that particular computer.
There was nothing more left for the lawyer to say. He felt he had presented the most open and shut case for further inquiry being needed by the police that could possibly be made out. He rested his case and asked for the court to do justice.
Justice Phulpoto once again repeated that he was disinclined to interfere in an investigation being conducted by the police and at best he would be willing to direct the police to decide the case in three weeks.
The junior judge sitting next to Justice Phulpoto looked up at the ceiling, and another case was successfully disposed off whilst raising the number of decided cases for the day.
An analysis of the numbers alone nearly got Justice Phulpoto a seat at the Supreme Court. It took the subjective opinion of people who knew the high court in which he adjudicated, as well as a deeper analysis of what lurked behind the numbers presented, to add critical layers of relevance to the data presented.
When CJP Bandial addressed the JCP, he started by saying that an appointment to the Supreme Court is on the basis of excellence. Later, in explaining why he had recommended Justice Phulpoto in the first place, he argued that “in Sindh you have to keep in mind the complexion of that society” and that was one of the factors he kept in mind. Second, he argued that he wanted a “gentleman who could be a good support for a senior judge” because “if someone is coming for three years or four years, we have judges who can lead the bench but they need support.”
Basically, the CJP is saying that they are inclined to sometimes hire those who can’t swim very well -- on the basis of excellence in swimming.
In the end, due to the degree of language used by some JCP participants in disapproval, Justice Bandial reminded us that it is essential to remember that Justice Phulpoto is still working as a high court judge. He did this to ask everyone to keep their critique civil, and perhaps as a recognition of how he continues to decide the innocence or guilt of hundreds of people on a weekly basis. With a great disposal rate.
One of the judges recommended for elevation out of turn was Justice Naimat Ullah Phulpoto of the Sindh High Court. The number of judgments he had authored stacked up against everyone else was being considered. The ratio of his judgments, which were later overturned by the Supreme Court, were also compared with that of other nominees.
It was the subjective analysis by the participants of the JCP which exposed what the numbers hid. It was put on record by Law Minister Azam Nazeer Tarar as well as others that his judgments were comprised mostly of reproduction of evidence on record, with little by way of analysis. Where there was analysis, it was obtuse or erroneous. It was also pointed out that more of his judgments had not been overturned because the criminal causes which he would normally be presiding over became infructuous while awaiting a hearing at the Supreme Court, otherwise the numbers would have been far higher. By the time the appeal from many of Phulpoto’s decisions was actually heard, as noted Justice Sardar Tariq Masood, the alleged criminal would no longer benefit from it being decided. Because he was either already free to carry on living, or no longer living. The Supreme Court in those matters had simply decided that it was no longer an issue which needed adjudication and hence any errors remained uncorrected.
I have had the pleasure of attending Justice Phulpoto’s court in Karachi a few years ago. He was at the time the senior judge in a division bench, hearing criminal appellate matters. Through the day, he was hearing mostly appeals from decisions made by the lower courts rejecting bail applications. Lawyers were appealing to the division bench of Justice Phulpoto, arguing that their client had a right to bail on facts and grounds of each case.
Regardless of the strength of the arguments presented in appeal from the subordinate court, Justice Phulpoto did not reverse a decision in a single case that day. His best offer would be that he would dispose of the bail appeal before him, and direct the trial court to decide the matter within a matter of a few months if the case was already at trial, or he would give the investigators a fixed few weeks to finalise their inquiry if it was still with the police.
Regardless of the strength of the arguments presented in appeal from the subordinate court, Justice Phulpoto did not reverse a decision in a single case that day.
Lawyers quickly realised that arguing for their client’s liberty was fruitless. Once their case was called, they dispensed with any attempts at convincing the court and preceded directly to bargaining on time Justice Phulpoto would agree to bind the trial court or the police to decide or investigate the whole case in.
One lawyer turned up at the rostrum and began his arguments on merit. He was reminded by Justice Phulpoto, who had not heard his case yet, that the bench was disinclined with interfering in the investigation and perhaps he wanted to seek some directions to be given to the police.
The lawyer refused this offer, and asked the court to hear him as facts would bear him out.
The lawyer was representing a client who was behind bars because the police suspected that he was involved in a robbery. The lawyer had presented evidence of this being impossible to the subordinate court, and the court had not heard him or granted bail. His client worked in a junior administrative role at a bank. At the time the police alleged he was committing the robbery, he was at his desk in the bank, evidenced by CCTV camera footage showing him seated there.
At this point, Justice Phulpoto interrupted and opined that the camera footage could be from another point in time. The lawyer responded by allaying fears of any footage being doctored by putting forward a statement of the bank manager, verifying that the time stamp on the recording was accurate.
The lawyer further argued that his client could be seen typing on his keyboard in the CCTV, and this was backed up with the bank’s computer records which reflected his login being used at that point in time from that particular computer.
There was nothing more left for the lawyer to say. He felt he had presented the most open and shut case for further inquiry being needed by the police that could possibly be made out. He rested his case and asked for the court to do justice.
Justice Phulpoto once again repeated that he was disinclined to interfere in an investigation being conducted by the police and at best he would be willing to direct the police to decide the case in three weeks.
The junior judge sitting next to Justice Phulpoto looked up at the ceiling, and another case was successfully disposed off whilst raising the number of decided cases for the day.
Basically, the CJP is saying that they are inclined to sometimes hire those who can’t swim very well -- on the basis of excellence in swimming.
An analysis of the numbers alone nearly got Justice Phulpoto a seat at the Supreme Court. It took the subjective opinion of people who knew the high court in which he adjudicated, as well as a deeper analysis of what lurked behind the numbers presented, to add critical layers of relevance to the data presented.
When CJP Bandial addressed the JCP, he started by saying that an appointment to the Supreme Court is on the basis of excellence. Later, in explaining why he had recommended Justice Phulpoto in the first place, he argued that “in Sindh you have to keep in mind the complexion of that society” and that was one of the factors he kept in mind. Second, he argued that he wanted a “gentleman who could be a good support for a senior judge” because “if someone is coming for three years or four years, we have judges who can lead the bench but they need support.”
Basically, the CJP is saying that they are inclined to sometimes hire those who can’t swim very well -- on the basis of excellence in swimming.
In the end, due to the degree of language used by some JCP participants in disapproval, Justice Bandial reminded us that it is essential to remember that Justice Phulpoto is still working as a high court judge. He did this to ask everyone to keep their critique civil, and perhaps as a recognition of how he continues to decide the innocence or guilt of hundreds of people on a weekly basis. With a great disposal rate.