Despite the good performance of some judges, our justice system is failing to deliver quality justice to the people. Pakistan's justice system is perceived to be a 'weak system.' It consistently earns a low ranking (the World Justice Project's Rule of Law Index 2021 places Pakistan 130th out of 139 countries). This raises an important question: Is there any standard method to judge the competence of superior courts’ judges?
None other than an honourable judge of the Supreme Court of Pakistan, Justice Qazi Faez Isa, provides an answer. Justice Isa points out that there is a test, examination, or interview for every professional post all over the world. He adds that "one's sweet wish" should not guide appointments just because someone likes the face or name of a candidate, or they were his friend, or they backed him during some election in the past. "This principle is un-Islamic, unconstitutional, and against the law. Things should not be hanging on one or two votes. Proper criteria may be settled and, on the basis of those, appointments should be made on merit so that no one can point fingers upon anyone," he emphasised.
Regarding already-appointed judges, Justice Isa notes that a judge may write very good judgments. However, if the judge takes a lot of time and is unable to decide a sufficient number of cases, then their competence cannot be tied to their good judgments alone. Similarly, the number of case disposals alone does not accurately indicate competence.
Elevation of judges to our Supreme Court occurs without specific criteria. The candidates for appointment in High Courts are not even required to write an essay on the law. No test or interview is conducted to examine their writing or communication skills. There is no examination of the behaviour or personality of candidates. If such exams could be conducted for civil and military services, why not for judicial service? Judges are mandated to examine acts of the legislature and the executive. They are custodians of fundamental rights enshrined in our constitution. So, they should be appointed after thorough examination of professional ability, judicial aptitude, judgment writing skills, and conduct as a lawyer. Lacking a competitive appointment procedure, there should be no surprise if the performance of our justice system is poor.
As pointed out by Justice Isa, the quick disposal of cases and a high number of judgments does not necessarily establish judicial competence. Such decisions could also be incorrect. Quoting several judgments without logical coherence, jurisprudential analysis, or the application of a sound judicial mind is not good judicial practice. Conflicting judgments on a similar legal issue multiply litigation and add to the burden on our appellate courts. Flawed judicial proceedings and judgments cause delays in the delivery of justice, increasing (not decreasing) disputes.
Senior judges should allow junior judges to develop their independent opinions and disagree with reason. Dissenting opinion encompassing sound reasons and legal analysis contributes to the law. Judges have a responsibility to fully engage with cases and use their individual intellects to scrutinize and evaluate the issues that come before their court. Supreme court judges, in particular, should not act in any haste; they should examine the policy and rationality of the law with due diligence as Supreme Court decisions are binding on all other courts in Pakistan. These decisions significantly impact basic rights and the functioning of all state institutions.
In this context, Justice Isa proposed that judicial positions should be advertised and granted after exams, as in countries like the UK. He stressed that there is no example in the world where high judicial appointments are made as they are in Pakistan.
Justice Mansoor Ali Shah, in a speech at LSE, reminded us that fundamental reforms are needed in the judicial system of Pakistan, especifically underlining the need for detailed procedures governing judicial appointments. Bar councils have consistently demanded that judges are appointed on merit. The time has come to fix criteria in this regard. Judicial appointments without such a criteria would perpetuate incompetence in our justice system.
Parliament, the Judicial Commission of Pakistan, and members of the legal fraternity should work out criteria for the appointment and performance evaluation of judges to ensure the delivery of quality justice. The honourable Chief Justice of Pakistan, Justice Umar Ata Bandial, advised that one should criticise judgments, not judges. But the two are linked. An objective discussion (without unwarranted criticism and scandalization of judges) on this link is urgently needed. Without this discussion, the nation will continue to suffer from a weak system of justice.
None other than an honourable judge of the Supreme Court of Pakistan, Justice Qazi Faez Isa, provides an answer. Justice Isa points out that there is a test, examination, or interview for every professional post all over the world. He adds that "one's sweet wish" should not guide appointments just because someone likes the face or name of a candidate, or they were his friend, or they backed him during some election in the past. "This principle is un-Islamic, unconstitutional, and against the law. Things should not be hanging on one or two votes. Proper criteria may be settled and, on the basis of those, appointments should be made on merit so that no one can point fingers upon anyone," he emphasised.
Regarding already-appointed judges, Justice Isa notes that a judge may write very good judgments. However, if the judge takes a lot of time and is unable to decide a sufficient number of cases, then their competence cannot be tied to their good judgments alone. Similarly, the number of case disposals alone does not accurately indicate competence.
Elevation of judges to our Supreme Court occurs without specific criteria. The candidates for appointment in High Courts are not even required to write an essay on the law. No test or interview is conducted to examine their writing or communication skills. There is no examination of the behaviour or personality of candidates. If such exams could be conducted for civil and military services, why not for judicial service? Judges are mandated to examine acts of the legislature and the executive. They are custodians of fundamental rights enshrined in our constitution. So, they should be appointed after thorough examination of professional ability, judicial aptitude, judgment writing skills, and conduct as a lawyer. Lacking a competitive appointment procedure, there should be no surprise if the performance of our justice system is poor.
As pointed out by Justice Isa, the quick disposal of cases and a high number of judgments does not necessarily establish judicial competence. Such decisions could also be incorrect. Quoting several judgments without logical coherence, jurisprudential analysis, or the application of a sound judicial mind is not good judicial practice. Conflicting judgments on a similar legal issue multiply litigation and add to the burden on our appellate courts. Flawed judicial proceedings and judgments cause delays in the delivery of justice, increasing (not decreasing) disputes.
Senior judges should allow junior judges to develop their independent opinions and disagree with reason. Dissenting opinion encompassing sound reasons and legal analysis contributes to the law. Judges have a responsibility to fully engage with cases and use their individual intellects to scrutinize and evaluate the issues that come before their court. Supreme court judges, in particular, should not act in any haste; they should examine the policy and rationality of the law with due diligence as Supreme Court decisions are binding on all other courts in Pakistan. These decisions significantly impact basic rights and the functioning of all state institutions.
In this context, Justice Isa proposed that judicial positions should be advertised and granted after exams, as in countries like the UK. He stressed that there is no example in the world where high judicial appointments are made as they are in Pakistan.
Justice Mansoor Ali Shah, in a speech at LSE, reminded us that fundamental reforms are needed in the judicial system of Pakistan, especifically underlining the need for detailed procedures governing judicial appointments. Bar councils have consistently demanded that judges are appointed on merit. The time has come to fix criteria in this regard. Judicial appointments without such a criteria would perpetuate incompetence in our justice system.
Parliament, the Judicial Commission of Pakistan, and members of the legal fraternity should work out criteria for the appointment and performance evaluation of judges to ensure the delivery of quality justice. The honourable Chief Justice of Pakistan, Justice Umar Ata Bandial, advised that one should criticise judgments, not judges. But the two are linked. An objective discussion (without unwarranted criticism and scandalization of judges) on this link is urgently needed. Without this discussion, the nation will continue to suffer from a weak system of justice.