Interestingly, there are still those who stand by their position that no fixed criteria can be or should be made and that it should be left to the best judgement and collective wisdom of the commission as intended by the constitution, while others stress on the need to offer some metrics, repeat the patterns of introducing technicalities without an appreciation or thought as to the implications of their proposals on those who are already underrepresented and seriously impacted by structural and invisible barriers that hinder their access and advancement in the justice sector as a whole.
Fortunately, there are few who are pushing the reforms from the lens of diversity and inclusion and are lending their alternative voice to this important debate for a reform that impacts us all, as lawyers, as litigants and as citizens and humans. These are the ones who bring another dimension to the ‘seniority vs merit’ binary and correctly identify that it is actually ‘seniority vs representation’ with ‘diversity’ being an important part of ‘merit’ that cannot be discounted for. This is because there are studies that show that there is likely to be bias inherent in homogeneity with which the courts and other relevant bodies are so often packed with. For instance, if we look at the composition of our own bodies including the judiciary, JCP and the Bar Councils, they are predominantly male. Even when consultation is sought, names of females are not mentioned as is stated in the Balochistan High Court Judgement C.P No 1085/2022 where after consultation with ‘brother judges’ and other male members from the bar council, bar association and ‘senior’ advocates from Balochistan, not even a single female lawyer’s name was proposed for nomination to the JCP for appointment as a judge, whereas, Women in Law Initiative Pakistan’s Balcohistan Chapter came forward with several names of senior female lawyers from Balochistan who fulfilled the criteria laid down in A193 of the Constitution and who could have been considered, including most notably, Advocates Fatima Khilji, Sarwat Hina, Syeda Tahmina, Iram Mahmmod and Andleeb Kaisirani. The issue however, was and remains that women were and are not ‘consulted’ at all. Amongst all the ‘consultees’ that were consulted, none of them were women and that is why it is not surprising that names of female lawyers weren’t even proposed. There is therefore, a diversity and inclusion problem in our justice sector that is much deeper than we think and it cannot be resolved with just ‘a criteria’ alone and that too one which is loaded with technicalities that have additional implications for women and other underrepresented communities as the ones being circulated by some of our male colleagues.
For instance, it has been proposed that number of reported judgements, number of cases decided, percentage of cases overruled and upheld by the Supreme Court, quality of judgements, integrity, temperament and top seven judges in seniority who have completed five years ought to be interviewed and scored by the JCP for appointments to the SC.
Aside from the fact that points-based system of appointment was first proposed by the Women in Law Initiative in their consultative session for developing consensus on Pakistan’s Principles of Judicial Appointments’ held on January 5, 2022, this recent proposal by a male colleague introduces metrics that make it abundantly clear that the gender and inclusion lens was clearly missing from it, given that the only two qualifying eligibility requirements that were mentioned were derived from Article 177 of the Constitution and no effort to read that together with Article 25 and 34 of the Constitution was made. On the other hand, the Women in Law Initiative has had a long-standing position that judiciary being a public institution and the JCP being a public body, should also operate within the framework of the Constitution, as per which affirmative action (A25) for ensuring participation of women in national life (A34) must be instituted within its own operations and workings.
There are few who are pushing the reforms from the lens of diversity and inclusion and are lending their alternative voice to this important debate for a reform that impacts us all, as lawyers, as litigants and as citizens and humans.
In this way, it can be observed that several technicalities in addition to the insistence on seniority are frequently channelised in a bid to provide some content to the criteria not realising that not only is this not helpful but that it would disproportionately impact women and minorities because representation is already so dismal so the odds of them having a higher number of reported judgements is anybody’s guess. Given the ground realities and need for increasing representation, such metrics are not very helpful, if not actively a hindrance.
The metric in terms of the ‘number of cases decided’, is even more vague given that this is not always in the hands of the lawyer or the judge in question. The delays in the hearings and cases are not always because of the applicant so tying their chance for being considered for appointment with this metric, appears to be out of place. Moreover, since lawyers can be considered directly for appointments (even though it has not happened in practice at Supreme Court level, but is still, technically a possibility); and given the fact that the pool of candidates should be wider in any case and should not be limited or restricted to judges, therefore, this suggestion does not seem to hold much ground.
Furthermore, metric related to ‘the percentage of cases overruled and upheld by the Supreme Court’ which seems to have been a factor that was brought up in the JCP deliberations as well however, is again, a very limiting metric since not all cases decided at the High Court level land up in the Supreme Court, so such metrics are therefore, unhelpful and as arbitrary and chance-based as the existing process. In fact, we must also not forget that lawyers are technically among the pool of eligible candidates and do get appointed through the same process at the High Court level so such a metric would not be applicable in their context either.
The obsession with ‘seniority’ continues to dominate the proposals by male colleagues even though it does not guarantee representation. In fact, limiting the scope of nominees to the ‘top seven’ would increase the chances of ‘gatekeeping’ by introduction of further structural barriers that would become another ‘technicality’ impeding representation of underrepresented groups. Additionally, being a part of an administrative committee that was used as an argument to justify the arbitrary number of top seven judges, is no real basis to argue in favour of appointment as a judge of the SC as it shows no insight into the merit and competence of the jurisprudential abilities of the person in question.
It is also important to realize and understand that Article 175A that deals with appointment of judges in the superior courts, includes appointment in both, the High Court and the Supreme Court therefore, either there needs to be clear demarcation and separate rules and constitutional provisions for appointment at Supreme Court and High Court or else, any suggestions have to bear in mind that the same would be applicable in context of appointing High Court judges so one cannot keep making technicalities like ‘top seven judges’ an argument since that might not fit well in the context where the question of appointment arises at the High Court level. Secondly, such a stipulation, would take away from the intention of the legislature to consider wider pool of candidates by keeping open the possibility of appointing a lawyer directly. Restricting them to ‘top seven’ judges would be against that as well.
The ‘quality’ of judgements surely appears to be a worthy metric to consider but it is important to structure it further so that it is clear how the quality is to be gauged/assessed? In absence of a more detailed or structured basis for assessing ‘quality’ this could again lead to arbitrary deliberations and opinions on how individual members of the JCP define ‘quality’. This is a challenge that even Women in Law has been struggling with and their proposals have also not advanced to a point where they have been able to refine how such an assessment is to be made. Perhaps, this is a good opportunity to consider what some of that refined metric on quality could look like. It could for instance include a checklist with which a well-rounded judgement ought to comply, for example:
- Does the judgement frame the issues/legal proposition accurately?
- Does it discuss the applicable laws?
- Whether it contains in-depth analysis on legal points in light of precedents as well as growing global trends in other jurisdictions?
- Is it written in a user-friendly manner and would be intelligible to a lay person?
- Whether it has reasoning, clarity, precision, brevity, sobriety, impartiality, complete hearing, evidence, precedents and arguments of both sides.
The metrics that need to be employed to assess the applications should not focus on the number of cases reported, rather on whether the candidate meets the minimum qualifications in Articles 177 and 193 of the Constitution which should be amended to extend eligibility to wider pool of candidates.
However, ‘integrity’ and ‘temperament’ are subjective evaluations and are rooted in individual perceptions of those who are at helm of scoring the candidates. However, among them, ‘integrity’, for instance, as a person who stands on principles as opposed to wavering point of views is perhaps quantifiable to some extent especially in case of the High Court judges with reference to their past orders/judgements on issues of public importance, sanctity and upholding of constitution and constitutional protections etc. However, ‘temperament’ as a factor is rather vague and subjective and would create space for personal inclinations and impressions to creep in the process of appointments that is otherwise being structured. Women in Law also faced similar challenges when they proposed the notion of ‘good character’ and ‘reputation’ as these invariably are subjective considerations. They are therefore, considering eliminating these attributes from their proposals. As with ‘quality’ and ‘integrity’ we must engage more deeply in proposing how these subjective values can be structured so that some more transparency and direction in discharging the discretion that comes with scoring on these subjective values can be introduced into the system.
Interviewing the candidates is a good suggestion however, the interview shouldn’t remain limited to an in-camera session among the JCP members and public scrutiny of candidates being considered for appointment in the higher courts at the Parliamentary Committee level and if not the Parliamentary Committee then, at least under a designated committee in the Senate should also be considered to enhance public confidence in the institution of judiciary. Furthermore, the JCP itself needs to be more gender balanced in its composition and any reforms must ensure that this is not overlooked.
It is important to realize that any criteria that is not rooted in increasing diversity and inclusion will not work, therefore, instead of loading the metrics with technicalities that further hold underrepresented persons back, the reforms must push for democratizing the system of judicial appointments by introducing a paradigm shift from ‘initiating nominations’ to ‘seeking applications’ from interested and eligible candidates via advertisements, whilst also extending the eligibility to include academics and other legal professionals. In addition to that, the metrics that need to be employed to assess the applications should not focus on number of cases reported, rather on whether the candidate meets the minimum qualifications in Articles 177 and 193 of the Constitution which should be amended to extend eligibility to wider pool of candidates.
Secondly, it must include metrics like whether the applicant would bring diversity (including gender diversity) to the Bench or not. Scores could be given for applicant’s recognized legal scholarship/acumen or known competence in the field of law and/or Fiqh (for Federal Shariat Court). Such competence could be gauged from their professional career trajectory, quality of legal arguments/prior judgements, published papers and research in their field etc. In addition to that, the extent of applicant’s compliance with cannons of professional ethics as contained in Legal Practitioners and Bar Council Rules 1976 or with code of conduct for judges of the SC and HC as contained in Notification No.F.SECRETARY-01/2009/SJC, where applicable, should also be gauged with reference to whether or not there has been any breach of such code or not, as should consistency of filing tax returns and compliance with other financial laws, rules and/or regulations and any past record, criminal convictions or other delinquent behaviour.
In addition to that, the composition of public bodies responsible for or engaged with judicial appointments itself needs to be reformed and be made more diverse and inclusive through affirmative actions. Despite the insistence of some colleagues that there is no need for a constitutional amendment on this subject, I am of the view that not only do we need a constitutional amendment to Articles 175A, 177 and 193, but we also need to repeal the powers of the Commission to make its own rules and instead enact a new law titled, ‘Judicial Appointments (Process) Act’ and make the Rules under it. Such a systemic and paradigm shift will have the space to accommodate all the suggestions to the move in the system from nominations to applications whilst also giving room to establish a ‘standing committee on diversity and inclusion’ that shall work in tandem with the commission and whose role would be to improve the pipeline of eligible candidates for judicial appointments via outreach, information, data, workshops and other activities. Such a committee would be independent of the commission and it shall be appointed by the Parliamentary Committee and no sitting members of the JCP or members of the Bar Councils would be eligible for being appointed as members of this standing committee which should have security of tenure and a diverse representation of its own from among members of the legal community, academia and development sector in general given the nature of their work as envisaged.