Recent appointments of judges to the august Supreme Court have generated a central debate – the seniority principle versus merit. This suggestion may hold some weight, that seniority cannot be a standalone principle for appointing a judge to the Supreme Court. Under the constitutional framework of Pakistan, the Supreme Court is the final court as well as the guardian of the Constitution. It must be adorned by the most capable, meritorious, neutral legal minds and jurists of the highest calibre. Its pronouncements have far-reaching effects on Pakistan because all institutions are under a constitutional obligation to follow the judgments of the august court. The appointment of Supreme Court judges made in absence of objective criteria creates an occasion for critics to generate debate. Decision-making in the absence of objective criteria or guidelines is understood as arbitrariness and non-transparency.
Stakeholders, honourable judges of the Supreme Court, learned members of the bar, worthy parliamentarians and civil society need to engage in a healthy debate and dialogue whereby an objective and transparent criterion for the appointment of judges to the apex court could be evolved and formulated.
It must be seen that the judge is impartial, neutral, objective and independent so that they hear and decide matters freely without taking any pressure from the government and political forces.
The seniority principle needs to be complemented with merit and supplemented with competence. The proposed objective criteria may contain a number of heads, with each head having a set number of allocated marks. Following are suggested factors which may form an integral part of objective criteria.
First, seniority may form one of the factors that must be taken into account.
Secondly, legal acumen ought to be an important factor i.e. a judge ought to have a deep understanding and knowledge of the totality of laws of the land, the principles of natural justice and the tools of interpretation. Clarity of thought and expression must be traits of a judge so that he/she is able to formulate the proposition of law clearly and settle the law in unequivocal terms.
Thirdly, while considering a judge of the High Court for the Supreme Court, the judgments handed down by him/her during judgeship of High Court must be taken into consideration. Professionalism should be assessed on the ratio of the number of judgments maintained by the Supreme Court and over-ruled by the Supreme Court. The total output of the judge at the High Court level in the judicial system, i.e., the amount of judicial work he/she undertook, must also be taken into consideration. The number of judgments authored in which principles of law have been clearly laid down ought to form part of objective criteria. A candidate being considered for appointment as Judge of the Supreme Court must have adjudged matters pertaining to diverse areas of the law.
Fourthly, financial integrity of the candidate ought to be another focal point to ensure that cases are heard and decided without any extraneous consideration.
Fifthly, impartiality, objectivity and independence ought to be an essential factor. It must be seen that the judge is impartial, neutral, objective and independent so that they hear and decide matters freely without taking any pressure from the government and political forces. Further, he/she must not give way to pressure even from his peer judges and members of the bar (especially the ones in the bar with nuisance value) while hearing and deciding a case. A judge must not let his political affiliations affect his judicial work at all.
Thus, each head: (i) seniority; (ii) legal acumen; (iii) professionalism; (iv) financial integrity; and (v) impartiality, objectivity and independence must be allocated an appropriate and adequate number of marks against which each candidate being considered for appointment to the Supreme Court can be judged and adjudged.
It is also important that the Supreme Court be adorned by female and male judges to ensure gender parity and diversity.
Meetings of the Judicial Commission of Pakistan (JCP) to consider and nominate the names of judges for appointment to the Supreme Court must be telecast to ensure procedural transparency. The meetings of the Parliamentary Committee on Judges Appointment in the Superior Courts must also be televised for the general public.
Furthermore, the judgment of the august Supreme Court of Pakistan in Munir Hussain Bhatti v Federation of Pakistan reported in PLD 2011 SC 407, which rendered the Parliamentary Committee on Judges Appointment in the Superior Courts toothless, ought to be reconsidered. The fact that judges consider and nominate the names of judges gives, so say the critics, an impression that the nomination process is not free from arbitrariness. A parliamentary committee must be able to meaningfully examine the nomination made by the JCP to make purposive recommendations to the appointing authority, i.e., President of Pakistan, to dispel the impression that judges nominate fellow judges in a non-transparent manner.
Until the objective criteria for the appointment of judges to the Supreme Court is evolved, settled and operationalized, the seniority principle must be adhered to in order to dispel the impression of arbitrariness and non-transparency.