The arbitrariness embedded within the system and lack of transparency, they argue, is susceptible to abuse and raises concerns regarding favoritism and cherry picking of kith and kin which ultimately leads to the composition of an apex court that is aligned with vested interests, they say, as opposed to true independent representation and impartiality which ought to be hallmarks of the judiciary as an institution.
While that is a legitimate concern, that there should be a publicly declared, open and transparent process for judicial nominations, however, the Bar simply loses the plot when it comes to the solutions that they set out to propose.
As opposed to arbitrary power to initiate nominations, they insist that the Chief Justice (CJ) be stripped of his power to initiate nominations and be bound to apply the lens of seniority to dispassionately and automatically advance the name of the most senior judge for the vacancy in question. They propose this as an ‘interim measure’ until such time that a ‘clear, transparent and objective criteria’ is formulated so that there is a method to appointments that errs on the side of certainty as opposed to arbitrary discretion. However, when asked, ‘what will happen if two candidates are equal in seniority against only one vacancy?’ they have no answer.
Much has been discussed about the efficacy of the insistence on applying seniority as an interim measure, which is neither a legal nor a constitutional requirement nor a practice. Once entrenched, it runs the danger of creating new rights for senior-most judges that currently do not exist. Once created, taking them back would become a far cry. I say this because senior judges have been made to feel as if they have been ‘bypassed’ or as if some right of theirs has been ‘violated’ at a point when no such right existed, leading to so much uproar and anguish against judges who may not have been the most senior but who were appointed instead. If the Bar can be up in the arms for imposing seniority when no such requirement exists on paper, you can only imagine what they would do once this inexplicable demand is actually accepted as a method, whether interim or not.
So, while we continue to question the bizarre and frankly very unhelpful demand to focus on seniority that may ensure certainty, but certainly won’t ensure representation, we must also question whether a ‘clear and objective criteria’ would really achieve the desired representation or would it end up cementing the status quo even further?
This is an aspect on which not much has been said and so here I want to highlight that having pre-determined criteria is not always the super solution that it is made out to be. There are several policy-oriented preliminary questions that need to be answered before criteria allowing room for intervention whilst also laying down a structure for the use and exercise of power is laid down. For instance, it must first be decided as a matter of policy what the basic objective and purpose of the criteria would be? What would it be intended to achieve? There can be two answers to this: either it would be intended to reduce the margin for arbitrary and individual preferences, or it could be rooted in a policy commitment to promote diversity and inclusion.
In practice, women are often discouraged from appearing in courts even when they do all the work on a case behind the scene, on grounds of it not being a ‘suitable environment for women’. If they do not appear, their attendance is not marked.
The arbitrary powers a CJ has are to the extent of initiating the nominations only. The approval of that nomination is, however, based on voting by Judicial Commission of Pakistan (JCP) members that have representation from the Judiciary, the Executive and the Bar. Thus, the powers are not as unfettered as they are made out to be. If the nominee moved by CJ fails to acquire the majority votes, it does not go through. In this way, we see there are some checks and balances within the existing voting-based system itself.
Moreover, it is important to also understand that too much rigidity and overkill of regulation is also not always a desirable outcome. Years of experience in the way common law was initially set up, and had to evolve in face of challenges posed by rigidity that didn’t allow it to entertain novel cases or step outside defined parameters, led to the development of equity as a complimentary set of rules that would achieve fairness and justice, which the otherwise rigid common law would not. In 1966, the apex courts in UK also had to issue a practice direction to their rigid system of precedent and allow for past decisions to be overturned where they had outlived their relevance in the ever-evolving social advancement.
Therefore, in many instances the role of discretion is desired as opposed to strict direction, so that a just outcome and appropriate action in a given case can be achieved. For instance, a crime may carry both major and minor penalties, but it is left to the discretion of the judge in question to determine which penalty must actually be imposed in a given case. This is not to suggest that such powers cannot be abused or that they should not be structured. In fact, all discretion must be exercised within the parameters of the Constitution. What it does, however, suggest is that discretion per se is not in and of itself a bad thing and in fact that in certain circumstances it may actually even be desirable. The real challenge of course is to be able to strike that balance which can give structure without introducing the risk of rigidity.
What the basic ‘purpose’ of the criteria for judicial appointments would really be is, therefore, crucially important before the ‘criteria’ itself can be put forward for consideration. If the whole focus is on entrenching seniority as a main consideration, then we should be able to see that that is nothing short of gatekeeping to maintain status quo of male dominance in these institutions. In such a case, no real challenge to the system is intended, rather, the slogan of reform is instigated for cementing existing power dynamics in the system. This can prove to be more exclusionary than inclusionary, especially when it introduces additional technical barriers in name of ‘clear criteria’.
For instance, introducing rigid technicalities such as ‘years of practice’, ‘number of cases’, etc., may result in subsisting the status quo and act as another tool for gatekeeping the exclusive clubs that these institutions currently are, and seriously impair the chances of appointment of females in particular as they fail to account for the cyclical nature of their careers, systemic exclusion from active legal practice, navigating caregiving responsibilities and professional achievements.
In practice, women are often discouraged from appearing in courts even when they do all the work on a case behind the scene, on grounds of it not being a ‘suitable environment for women’. If they do not appear, their attendance is not marked. Even if they do appear, the reader might not record their attendance and mention only the name of the male colleague with them. This impairs their chances of showing the requisite number of cases in which they have appeared, which directly impacts their eligibility on paper to meet technical requirements like the number of cases, number of reported judgements, etc., even though in reality they may have worked on many more. The system rooted in technical requirements is rigged against the women to begin with.
Sometimes, therefore, introducing technicalities can further perpetuate existing inequalities and can push back the already marginalized classes even more. Such criteria are not a healthy reform for the institution of judiciary or for Pakistan and would exacerbate existing inequities. In our quest for transparency, we must not end up supporting measures that would perpetuate the status quo and add to the invisible and structural barriers that have kept women and other underrepresented groups from eligibility and access in these forums.
As it is, the focus on professional qualifications for eligibility in the justice sector is what we have inherited from our colonial past. Even the UK has moved on from its strict insistence on determining eligibility purely from technical and professional qualifications towards a more holistic and inclusive lens. They now count diversity as being a component of merit itself and require a publicly declared commitment to diversity and inclusion. When you approach reforms with the lens of diversity and inclusion as opposed to the lens of curtailing the CJ in his arbitrary exercise of power, then you are not just fixated with the idea of cementing seniors in the profession but are open to a paradigm shift to reimagine the entire process in a way that makes it possible for more people to come forward and be included.
It is for this reason that criteria alone are not sufficient to address the representation problem in the justice sector of which lack of transparency is a symptomatic issue. Any quick fixes for the sake of transparency that don’t take into account the more pertinent issue of representation will make matters only worse for those who are underrepresented. ‘Seniority’ itself is one such gatekeeping tactic that, although may be making the process more transparent and certain, will add nothing to diversity and inclusion. Transparency rooted in entrenching seniority is, therefore, not a solution that ought to be desired. Instead, a paradigm shift from nominations-based to an applications-based model should be made whereby, applications are invited against vacancies in the higher judiciary from a wider pool of applicants along with stated commitment to diversity and inclusion as per Articles 25 and 34 of the Constitution. The JCP could consider all complete applications received within a stated deadline and record points against legal acumen, skill, reputation, compliance with ethics, code of conduct, tax and/or other laws. The Women in Law Initiative has made detailed recommendations in this regard which deserve consideration and engagement by all stakeholders.