Of ‘Hilal’ Resignations And ‘Haram’ Appointments: What Are We Overlooking?

Upon Justice Hilali's retirement there will only be two women in the SC till 2028. After 2026 the next appointment of a female justice will be delayed and uncertain as three of the females judges are set to retire by 2024.

Of ‘Hilal’ Resignations And ‘Haram’ Appointments: What Are We Overlooking?

‘Tis the season of resignations. The perception that a dismantling in the apex house is systematically being executed is ripe. Most people seem to be rejoicing this newfound influence on court as they find themselves aligned, some have argued that “pressure” should have been withstood, some recognize the need for accountability of sacred cows. While all of that may be valid at a nuclear and individual level whereby yes, we can all call for accountability and need for judges to withstand the pressure etc., in that process we must not overlook the bigger game at play here. 

For years, colleagues from bar have been critiquing the arbitrary and non-transparent process of judicial appointments suggesting that the same has been used to cherry pick and pack the court with judges who would play a role in achieving political outcomes through judicial rulings. Our chequered history has been used and often quoted to support their claims and while I am not disputing that judiciary has been exploited as a tool for political gains and manoeuvring, what I am concerned about is the newfound ability of the powers that be to remove judges that no longer appear to serve the political ends. 

What I am saying is that individual accountability aside (which is important, and which must be institutionalised via democratic and constitutional means through legal and constitutional amendments) if cherry picking for appointments to achieve political ends was wrong then surely cherry picking for resignations cannot be kosher either! Similarly, if witch hunt of politicians was wrong then witch hunt within judiciary can also not be condoned. 

This does not mean that individual accountability should never take place and that we should all not be concerned about developing processes and provisions that ensure a process for accountability, but what it does highlight is the need to protect the institution as a whole from external influences that can dictate appointments and now resignations as well. 

The space that is being ceded and opening up to external forces to be able to ‘manage’ the composition of the apex court either through ‘hilal’ resignations (allegedly corrupt judges) or ‘haram’ appointments (so called junior judges when there are in fact no turns!) is where the institutional threat lies and at this point that is something that needs to be an important aspect of the conversation. 

What is unfortunate is that apex judiciary remains hostage to powers that be in its resignations just as it perhaps remains in its appointments and both instances are bad for the institution as a whole. Individual accountability is one thing while the institution being hostage to powers that be quite another. 

As a colleague of mine said, “there are now two ways in which powers that be appear to have succeeded in asserting control over judicial composition – first at the time of appointments and now in resignations”. Individual judges’ character and credibility aside on which I am not commenting as matters are sub judice; institutionally however, this has the danger of suppressing dissenting voices at the bench and a new chapter of judicial engineering can open up in addition to political engineering. 

The accountability processes must be developed through a democratic and political process as opposed to arm-twisting pressure tactics apparently at play behind doors to suit changing needs of regime because right now what is happening is basically the same thing that bar had initially highlighted and had a problem with for years, that for political outcomes, composition of judiciary is being managed and if that was wrong at time of appointments as the bar alleged, then it must be wrong now in case of resignations as well because if the point was to do away with cherry picking then surely, this isn’t helping the cause.

The latest quagmire in that list is the recent and desperate press release by Pakistan Bar Council of January 20, 2024 in which they have again attempted to make unconstitutional demands on the apex court to fix a flawed and what should be by now an infructuous petition of the late Justice Waqar Seth to decide on judicial appointments that were made in what they consider a disregard of “seniority principle” when in fact there is no such principle in the constitution or law. 

The Al Jehad trust case that they misquote and overuse is pre 18th amendment of the constitution and in any case Supreme Court has held in subsequent cases that appointments to supreme court are fresh appointments and not a continuation of any prior judicial service (see: PLD 2002 SC 939 and PLD 2019 Sindh 399). 

Further, Articles 175A, 177 and 193 of the Constitution which contain eligibility requirements of appointment of judges also make no reference to need to consider seniority other than for chief justices. 

The decision of the Supreme Court in Supreme Court Bar Association v Federation of Pakistan (PLD 2002 939 SC) in paras 23-27 clearly established that the absence of the words, 'the most senior' in Article 177 for appointment of Judges of the Supreme Court would show that seniority of a Judge in the High Court is not an essential condition for their appointment as a Judge of the Supreme Court. They went on further to assert that, “We are clear to our mind that neither the principle of seniority is applicable as a mandatory rule for appointment of Judges in the Supreme Court nor the said rule has attained the status of a convention”.

In their view, the consultative process envisaged in the constitution for nomination and appointments of superior judges will become redundant and superfluous if the rule of seniority is held applicable to the appointment of the Judges of the Supreme Court because in that eventuality the process would become automatic and mechanical.

At least 41 times judges have been appointed to SC without them being most senior. There is therefore, no such custom either. 'Seniority', is at best a mere demand of some members of the Bars at the moment and has no legal basis. It is also anti representation and anti-women.

Women in Law Initiative Pakistan did a whole quantitative analysis as at May 5, 2023, on what would happen in terms of representation if appointments to the Supreme Court indeed start being made on the basis of seniority. They found that Sindh stands to have the highest number of judges 'elevated' if seniority is applied whereas KP will have 0 representation at all between 2023-2031 if seniority is followed. 

Interestingly, after Hon’ble Justice Mussarat Hilali's appointment which itself would be against the existing vacancies in lieu of seniority principle in strict sense of the term, won't just have representation in SC for next 3 years but, number of women in SC will also increase from 1 to 2 and then with Justice Aalia Neelum's 'elevation' on basis of seniority in 2026, the number will increase to 3 women in SC by 2026 till Justice Hilali retires 2 of 2 on August 7 2026.

Upon J Hilali's retirement at age of 65, there will again be only 2 women in SC till 2028. After 2026 the next appointment of a female too will become much delayed and uncertain as the 3 of remaining 4 females judges (who won't get elevated on basis of seniority between 2023- 2031) in the HC are set to retire by 2024 whereas only 1 is set to retire in 2038. Some 21 male judges will be senior prior to that 1 female so it is unlikely she will have the chance of being ‘elevated’ to the Supreme Court.

As the data shows however, if Seniority is strictly applied Khyber Pakhtunkhwa will have NO representation for the next 8 years at least i.e. till 2031. Seniority is therefore, anti-representation particularly for some provinces. If appointments process is not reformed with a gender and inclusion lens, or worse, if seniority is entrenched, then this is what is the likely outlook and prospects of the court's composition.

To the argument that seniority has not been argued by anyone in the strict sense that we have applied here to make a point and insist that, “demands have all been for seniority as between judges of a particular High Court (and not on nationwide basis). Obviously, that’s because all smaller provinces want defined representation/quota in Supreme Court too.” We say that there can be no either/or, either it is ‘seniority’, or it is other factors that impress upon the decisions for judicial appointments rooted in ‘representation’. 

If it is the latter then why only provincial representation, why not gender or ethnic or religious for that matter? It is disingenuous to only argue for provincial representation mixed with seniority and ignore these other important stakeholders that need to be represented in Supreme Court as well. If demands have been made for seniority as between judges of a particular High Court for provincial quota, well then so have they been for gender and other representation of minorities etc so why be selective and ignore our demands? Are we (women, minorities etc) not stakeholders enough?

It is becoming abundantly clear that every few months the bar attempts to resurrect this unconstitutional demand. In the context and circumstances that this press release has been issued I can't help but smell a major rat and here Pakistan Bar Council is gladly lending itself for becoming what seems to be, a tool for the objective of "cleansing" the Supreme Court of the remaining dissenting voices on pretext after pretext! From like-minded benches to a wholly like-minded court seems to be the burning desire. 

Judicial independence must be guarded from external challenges whilst ensuring a way for accountability that is democratic as opposed to one that comes from perception of threats and pressure having been exerted and at the very least, the bars should not be supporting something which is unconstitutional.

 Read the Women in Law’s Seniority Analysis here

The writer is diversity and Inclusion advocate and founder of Women in Law Initiative Pakistan.