Senior Members Of The Judiciary Must Protect The Dignity Of The Supreme Court

Regarding the appointment of judges to the Supreme Court of Pakistan, it may be argued that airing the internal disagreements of the most senior SC judges in public is undermining the integrity of the apex court. On the other hand, it may be contended that making such differences public enhances transparency in the judicial appointment process, improving public trust—even if the disagreements concern the possibility of bias in the appointment process (and, thus, in the composition of the Court itself). In my view, a balanced approach is required to promote the integrity of the SC and our justice system. The criteria for judicial appointments should be more objective and open to public debate. However, like personnel issues in many contexts, an internal difference of opinion among members of the Judicial Commission of Pakistan (JCP) should be withheld to maintain the decorum of the SC.

At the recent opening ceremony of the SC's new judicial year 2022-2023, the Honourable Chief Justice of Pakistan publicly regretted the Federal Government's displeasure regarding a SC decision addressing a ruling by the then Deputy Speaker of the Punjab Assembly (discarding ten votes cast by members of a political party during the election of the Punjab Chief Minister). This displeasure was articulated in a meeting of the JCP convened to consider the Chief Justices' nominees for appointment to the SC; the Federal Government representatives chose not to support the candidates proposed by the Chairman (i.e. the Chief Justice). "As a result, the meeting had to be adjourned," said the Chief Justice.

The senior puisne judge and his colleague then addressed a letter to the JCP, noting that "the object of the ceremony (as stated by the CJP) was to identify our priorities and set out our vision for the coming Judicial Year, but the CJP said much more…". "[W]hat was most inappropriate and unreasonable, was to mention the working and decisions of the JCP". Further, it was stated that "[i]t did not behove the CJP to attack its Members, and to do so publicly, only because they did not support his candidates. What the CJP said was also contrary to the record...". The audio recording of the JCP proceedings of 28 July 2022 was also made public.

The disclosure of the disagreements among the senior judiciary might have partially served the public purpose of ensuring transparency in judicial appointments. At the same time, it might ignite partisan criticism of the integrity of the SC and weaken the judiciary. Thus, the deepening of divisions in the SC needs to be restrained.

Considering the huge backlog of SC cases and the reduced strength of the Court after the retirement of several judges, the appointment of more judges is a pressing issue. But, the urgency should not lead to public statements and counter statements by the worthy members of the JCP. The public disclosure of disagreements will affect the court's functioning and reduce the public's confidence in the judiciary.

Public perceptions of growing differences within state institutions, and a failure to resolve them internally, are immensely damaging to the rule of law and the administration of justice in Pakistan. The independence of the judiciary must be safeguarded. No one can be allowed to impair the institutions of the state—least of all the judiciary as a backbone of any society.

The Honourable Chief Justice of Pakistan should consider opening a dialogue amongst the judges and representatives of the bar to clarify and publicise formal criteria giving both merit and seniority a fair share. Our constitution does not create any artificial polarity—seniority versus merit. Further, a transparent procedure for the fixation of cases and the formation of benches should be devised allowing all SC judges an equal opportunity to decide important constitutional cases. Finally, the SC's suo motu jurisdiction needs to be exercised in a way that strictly maintains a constitutional separation of powers between the legislature, the executive, and the judiciary.

This hapless nation of 240 million souls is drowning in debt, despair, inequality, and injustice. The erosion of democracy and rule of law, insecurity, as well as deterioration of trust in political and justice systems is on the rise. According to the latest Human Development Report (2021-2022), Pakistan has dropped seven places to 161 out of 191 countries and now joins the world's 32 low human development countries. Thus, a strong commitment and collective effort are needed to confront the economic and political challenges of the country.

The SC also needs to review the role and responsibilities of the judiciary, considering national and global challenges such as the economy, increasing population and disputes, and technological advancements and disruption. Ceremonial speeches without transparency in judicial appointment processes and the transformation of our justice system will not help to meet the challenges faced by Pakistan. Considering the enormity of these challenges, government and bar councils must support the judiciary.