Considering the chequered history of our judiciary and the unimpressive reputation it has enjoyed in terms of independence from the centers of power over the decades, (such regular recurrences of abdication of authority, incidentally, leaves one bemused if not wholeheartedly despondent) anyone could be forgiven for being apprehensive every time a departure is made from the so-called seniority principle.
Upon the heels of the above-mentioned appointment came the issue of Justice Ayesha A Malik’s nomination for appointment as a judge of the Supreme Court—again not adhering to the seniority principle—which was defeated by one vote in the Judicial Commission (JC) of Pakistan. Needless to say, the issue of her ladyship’s appointment also attracted controversy and fierce debate leaving her supporters having been made to look like clutching tenuously at the gender argument, as if her appointment was mainly anchored in some gender-oriented state policy of affirmative action. With respect, I tend to disagree.
Some eminent lawyers who spoke on the subject in the recent past have stopped short of giving any solutions for improving the system and giving a concrete, failsafe mechanism. Although the parameters of such appointments may be clearly defined in order to avoid a ‘rat race’ as per Saad Saud Jan J in Al-Jehad case and yet the word concrete may be a little misleading in a society where any half-workable measure is deemed to be the panacea for all the ills and, disturbingly, for all times to come, with all its rigidity leaving little room for future corrective measures taken in the evolutionary journey of any legal/constitutional provision.
In defence and mitigation of the seniority principle camp, it may be fair to describe their anxiety as well-founded considering how, historically speaking, judicial appointments have been viewed as ‘their territory’ by the powers-that-be. This incidentally ensures their complete hegemony in a post-colonial milieu, a mindset that refuses to reform itself more than seven decades later. Such examples are numerous with ‘need of the hour’ (read acceptability to the powerful military establishment in active collusion with the higher judiciary) having different and even conflicting requirements every time an out of turn judicial appointment was made in the past with merit figuring pretty low on the priority list on quite a few of those occasions.
It is precisely for this reason, inter alia, that the lawyers’ representative bodies have viewed departures from seniority principle with suspicion and have consistently alleged a veritable Luciferian mindset at work intent upon impeding the national march towards rule of law.
Having said that, almost all of its supporters, including veterans like Hamid Khan and the current face of the younger -- fearless and dynamic lot -- Salahuddin Ahmad, the former President of the Sindh High Court Bar Association, candidly admit that the seniority principle alone does not guarantee a judge’s independence and should only be employed as a stop gap arrangement till more objective and universally acceptable criteria are formulated.
A society firmly clinging to the seniority principle as the only acceptable method to ensure transparency and, hence, rule of law and thwart outside influence from unelected quarters, generally considered regressive in nature, may be a bad reflection on its civilizational/evolutionary journey. In the wake of Lawyers’ Movement, the ire of the legal fraternity and the civil society was understandably directed at a military dictator who could whimsically send a sitting Chief Justice home with impunity. And since the ‘elected’ representatives were also not trusted because of the overreach of any military dictator whether in power or ruling through a proxy, the result was an unenviable judicial capture culminating in the 19th Amendment to the Constitution.
Short of doubting the intentions of the then Supreme Court headed by Justice Iftikhar Muhammad Chaudhry, the Bar Councils and Bar Associations across the country felt at the time that allowing the final say or the casting vote to a parliamentary committee would undermine standards and the end result, as we know, was a ghastly Article 175A through the 19th Amendment making the judiciary the lone elephant in the room, unelected and, hence, unaccountable. The haunting memory of fellow judges not rising when a directly appointed Chief Justice of West Pakistan High Court, Manzoor Qadir (one of the most brilliant lawyers from any era) entered the judges’ tea room as a mark of deliberate irreverence were still fresh, it seemed.
Feisal Naqvi, a Lahore based senior lawyer, although disagreeing with the South African model proposed by Reema Omar which includes far too many groups from the civil society to make it workable in the typically Pakistani setting, has also voted in favour of the JC for it being more efficacious than the 'seniority principle' despite trusting the nine members of the JC with the crucial responsibility of picking Supreme Court judges being not an ideal solution.
Almost six decades after the Manzoor Qadir incident, perhaps, it is high time we freed ourselves from the palpably fastidious and fast decaying principles laid down in Al-Jehad and Munir Bhatti judgments by making the process more transparent which ensures, above all, independence of judiciary and reflects the will of the people. What are the proposed measures that need to be taken so that vertiginous falls in standards from one brilliant judge to a mediocre one can be avoided as, through the current system—a fact rightly lamented by Salman Akram Raja—we are destined to receive brilliance and mediocrity all at the same time. Hardly a perfect mix to run a justice system flawlessly!
For appointments to the Supreme Court, it may be fruitful to test the potential candidates on three criteria and award points as follows: 1) minimum five years’ experience as a high court judge (already prescribed under Article 177(2)(a)) along with length of tenure in the above capacity,
2) number of reported judgments and whether those were upheld by the Supreme Court to be worked out on a formula on the basis of which rules may be framed and
3) conduct, reputation of a judge. Apart from the existing JC, a parliamentary committee, represented equally by opposition and treasury law makers, may be responsible for awarding points as per the following formula: one point for each year as a high court judge.
For example, if someone has been a judge for ten years he/she will automatically get ten points. Only the JC will award points for a judge’s judicial work in terms of law laid down as described above on the basis of clearly defined rules framed for this purpose, preferably restricting the discretion currently enjoyed by the JC.
Although Parliamentary approval through debates along the lines of Senate confirmation of judicial nominations in the United States may be the best model to follow, but to kick off a more democratic process for Pakistani consumption as a first step, it is proposed that judges ought to be graded for conduct and reputation by the parliamentary committee only and not by the JC. In order to assess a nominee, it can have formal interaction/interviews with the judges in order to eliminate the perception of nepotism and to avoid being judged by your own senior peers apart from requisitioning relevant information.
The factors taken into account may be, inter alia, general conduct of the judges in court and their record/reputation for resisting pressure from the executive and his/her unflinching commitment and tendency to uphold the spirit of law. It may be argued that some fine tuning will still be required before putting the above formula into practice resulting in the judge scoring the highest number of points being considered for elevation.
Based upon the above rationale, similar criteria may also be worked out for judicial appointments in the High Courts. Let us hope a truly representative Parliament takes up the task of amendments to Article 175 A in earnest.