The concerns over the judicial appointments process have been a long-standing issue on which there has been considerable debate and at times, major disagreements among the members of the bar, judiciary, and the female stakeholders in law.
On December 4, 2023, the JCP established a committee chaired by Justice Syed Mansoor Ali Shah including Justice retired Manzoor Ahmad Malik to review the amendments to the JCP Rules 2010. The committee comprised senior puisne judges from all high courts, along with the attorney general for Pakistan and the law minister, totaling 15 members. Subsequently, the committee convened two meetings to deliberate on the proposed amendments to the JCP rules.
The all-male committee was criticized for its lack of inclusion of women and lack of participatory approach towards judicial reforms that impact a much wider section of the legal community and society at large.
Following this criticism, the committee later claimed to have ‘co-opted’ other stakeholders including prominent lawyers, members from district judiciary and leading female justices of the superior courts to solicit their proposals at a very short notice. This did not at all seem like a fair opportunity for them to contribute to this important development, neither was there any comment on whether there would be any real opportunity for the co-opted members to engage with the rule making committee in any meaningful manner. It was not clear if they would even have as much as an opportunity to know the fate of their proposals and to what extent were they considered, if at all.
For this reason, I had previously also argued for greater transparency and wider stakeholder consultations in the entire process as otherwise the public and stakeholder confidence on the justice sector was likely to remain tainted if not fractured even further.
The greatest challenge that comes when such processes are not centered around transparency and wider inclusive and participatory approach is that the outcomes from such arbitrary and blind processes pave way for suspicion and even greater mistrust in the system whilst also becoming a missed opportunity to include the lived experiences and voices of the many stakeholders and users of the justice system. As a result, the system is left poorer without the collective wisdom of its multifaceted stakeholders and users.
There is also the danger of replicating, if not aggravating, the existing inequalities that persist in the system. The net result being that there is then the danger and potential of being left worse off than before. What then even is the purpose of the exercise of reform if it does not address the long-held concerns of its users and the wider stakeholders including women lawyers and other marginalized and vulnerable groups?
As per what is being reported on the proposed draft of the JCP Rules 2024 that have been disseminated among all members of the JCP, it appears that the rule making committee has not addressed the fundamental issue around the Chief Justice of Pakistan’s ‘arbitrary’ power to initiate nominations for appointment in the Supreme Court.
However, for the appointments in the High Courts, a three-member selection committee instead of the Chief Justice alone shall initiate the nominations; meaning thereby that instead of one person arbitrarily nominating persons to be considered for appointment, now three-member committee shall be doing the same. This is akin to the practice and procedure bill that calls for fixation of benches in accordance with what the three-member committee decides as opposed to the CJP alone.
The proposed selection committee is to be composed of the concerned Chief Justice, the senior most judge of the High Court and one representative of the provincial bar council, while the court's registrar would act as the Secretary of the selection committee. These are offices and positions that are more likely to be comprised of all men in most cases and very rarely can we expect to find a woman being on such a committee.
While this proposal may allow more people than one to come up with nominations, it does not address the fundamental flaw with the nominations-based model of judicial appointments that is archaic and does not create equal opportunities for marginalized and underrepresented persons to be considered fairly for the vacancies in higher judiciary.
The 2022 study on fair representation in justice sector which I did, revealed that proximity of practice in cities where there was a seat of the High Court enhanced the chances of a lawyer to be considered for appointment however, those lawyers who practiced at trial and subordinate levels found it much more difficult to break the barriers of invisibility that came with the lack of proximity to judges in the High Courts.
Such invisibility disproportionately impacts female lawyers who are even less likely to have an opportunity to be in contemplation of the Chief or now the three-member committee if the said rules with the same arbitrary powers to suggest the names for appointment are approved.
Instead of spreading the arbitrary power from one person to three, the better institutional reform would have been to bring a paradigm shift in the process of appointments altogether. The distribution of power from one to three does not bring the reform that is needed as it is simply a power-sharing formula without an actual transformative change in the process itself.
What was needed was reform in the system to make it more enabling and rooted in principles of equality of opportunity, not the spectacle of power sharing from one to three office bearers that it is proposed to now be!
Such a systemic reform would have ensued if instead of appointments by way of nominations, appointments by way of advertised positions seeking applications from eligible candidates would have been solicited instead for consideration so that the candidates had an equal opportunity to present their names and profiles for consideration for appointment. This should have been followed by an aptitude and skills assessment to ensure they were fit for office and based on their scores; their names should have been forwarded to the parliamentary committee for appointment.
The one area where the proposed rules appear to be bringing in more flexibility is with the appointment of Chief Justices of the High Courts. Where previously the practice had been to appoint the senior most judge as the Chief Justice, the proposed rules now call for the chairperson - the CJP - to convene a meeting of the Commission for deliberation on the names of the five most senior judges of that High Court one month before the occurrence of the vacancy. With this the cherry picking will only increase – a concern that had been raised by the members of the bar repeatedly in case of appointment of judges (other than the Chief Justices as they were being appointed on basis of seniority). But if approved, they will now have to be wary of cherry picking in case of appointment of Chief Justices of high courts as well.
From the perspective of women, this may not be necessarily to their disadvantage nor to their advantage either because this cherry picking from up to five senior most judges only exacerbates the arbitrariness around the appointments and gives more power and room to the commission to decide which of the five shall be appointed as the chief. The female senior may get selected or she may not, who knows! The power would vest with the male dominated JCP.
Previously, the senior most female justice would have to be appointed as the Chief Justice as in the case of Mrs. J Musarrat Hilali when she became the Chief Justice of the Peshawar High Court, but with the new proposed rules, a female justice in her position today may easily be by passed in favor of one of the other four senior judges from that high court. Thus, only time and cherry picking will determine whether such a female would or would not get appointed as the chief.
Likewise, for the appointment of the Chief Justice of the Federal Shariat Court, the chairperson i.e. the CJP would put forward two nominees showing that the arbitrary power to initiate nominations would pretty much remain with the CJP or the three member committee whichever applies!
In relation to establishing criteria, the proposed draft states that to assess the suitability of an individual for a judicial appointment, primary emphasis shall be placed on the criteria delineated in the judicial oath outlined in the constitution. This entails the individual's capacity to dispense justice impartially, in accordance with the law, devoid of fear, favouritism, personal affection, or prejudice. All of these are great, but these attributes should be formally and professionally assessed based on skills and aptitude assessments and not arbitrary deliberations among a handful of people.
Additionally, the proposed rules suggest that the candidate's professional qualifications, experience, communication abilities, efficiency in managing workload, integrity, independence, objectivity, and temperament to treat individuals from diverse backgrounds fairly shall all be taken into consideration. On what parameters and grounds, that we are not clear about. However, the one proviso that truly stands out is that “in nominating Judges of the High Courts for appointment as a Judge of the Supreme Court, the seniority among Judges of a High Court as well as inter se seniority of Judges of different High Courts shall also be considered.”
This to me is the most alarming proposal as it gatekeeps access to appointment in the Supreme Court for only the senior most judge of the high court which will have serious repercussions on fair representation in the composition of the apex court. This will impact not just women’s representation but also that of representation of judges from different provinces or other marginalized and vulnerable groups.
An analysis I did based on seniority metric in 2023 (available at: https://www.academia.edu/115391838/Impact_of_seniority_on_representation_in_Supreme_Court) showed that if seniority was strictly followed (and had Justice Hilali not been appointed to the Supreme Court before her retirement as the Chief Justice of the Peshawar High Court), Khyber Pakhtunkhwa would have NO representation for the next 8 years at least i.e. till 2031 whereas Sindh would have the highest number of judges in the Supreme Court. Seniority is therefore also anti-representation for some provinces.
It is also interesting to observe that since the Chief Justice of a High Court can now be from among any of the five senior most judges of that court then when the time for appointment of justice of the supreme court would come, would the Chief Justice who may be junior in the list of the senior five, be considered the senior most for the purposes of the appointment to the supreme court or will the actual senior judge of the five who did not get appointed as the Chief Justice of that High Court be considered senior for the purposes of such an appointment? Also, I am not clear if the proviso assumes that judges to the Supreme Court shall only be appointed from among the judges of the High Courts. If this is what the indication is then I am not sure why this is so when the constitution keeps the possibility of a lawyer being appointed as a justice of the supreme court directly?
Reportedly the proposal does not explain why so much emphasis and focus has been placed on a technicality like seniority when it is not a guarantee of merit, understanding, aptitude or any of those other values that they want to consider as part of the criteria for judicial appointments. Seniority is an accident of first come first served privilege that can be earned more easily and conveniently by male lawyers who get higher chances of being allocated work in the courts that enables them to meet their licensing requirements for advancing from advocates in lower courts to advocates in higher courts and thereby giving them unfair and undue advantage of being considered senior and more likely to be noticed and suggested for appointment by the selection committee.
I am not sure why the discrimination that female lawyers face at hands of law firms and legal practice culture, which impacts their state of seniority in the profession, due to being given less opportunities to meet their technical requirements for seniority (such as being reflected as the counsel in a given number of cases) should become the reason that exacerbates this inequality and reduces their opportunity of fair representation in judiciary. Whether they got an equal chance to practice law or be reflected as counsels in the judgements and orders as their male counterparts is no determinant of how skillful they are and how suited to judicial practice they may be.
The path to judiciary should not be dependent to any extent on the process of how license to practice is acquired over the years, which may be affected by several other factors beyond the control of the lawyer in question such as for instance, delay on part of the committees to call the advocates for interviews, the verification of their degrees that the bar council has to get done from universities so on so forth. So many variable and uncontrollable factors and arbitrary interview schedule and lists can and does affect seniority of a lawyer in the profession. Is it then fair to stress on it and make it even more difficult for the marginalized persons to be represented in the apex court?
About the representation of advocates and members of the district judiciary, it stated that in initiating nominations for appointment of judges of the High Courts, the selection committees shall ensure a fair representation of advocates and members of the district judiciary but it appears to make NO reference or mention to the need for fair representation of women or other marginalized persons in the judiciary.
It is unfortunate that despite Article 25 (3) and 34 of the Constitution as well as the internationally accepted norms, conventions and practices calling for equal opportunities, affirmative action, participation of women in national life and more specifically gender diversity, equality and inclusion on the bench as part of merit and as an underlying objective of the judicial appointments reform, the proposed JCP rules appear to fail the women even more than before whilst also failing the provinces.
Instead of making the apex court more representative and inclusive of diverse voices that can bring the lived experience and enable the enrichment of jurisprudence that emergences from such diversity of perspectives, the JCP appears to have chosen to further gatekeep the composition of the apex court whilst retaining arbitrary control over the appointments in other tiers. This is a classic example of how reform must not be done!