ISLAMABAD: As the Sept 9 protest call by the Supreme Court Bar Association (SCBA) draws nearer, Attorney General for Pakistan (AGP) Khalid Jawed Khan has sought the help of the country’s premier bar councils and associations in exploring a common ground to avoid disharmony — as being witnessed presently — in the appointment process of judges of the Supreme Court.

A two-page letter was written to Pakistan Bar Council (PBC) vice chairman Khushdil Khan and SCBA president Abdul Latif Afridi days ahead of the schedule Sept 9 meeting of the Judicial Commission of Pakistan (JCP) to consider elevation of the first woman judge in the Supreme Court, Justice Ayesha A. Malik, who is the fourth in the seniority list of the Lahore High Court. The country-wide protest call of the SCBA coincides on that day.

Consequently, the AGP through the letter sought input from members of the legal fraternity which will be placed before the JCP for consideration in its next session on Sept 9.

Letter stresses a blend of seniority and merit as ideal principle

“These being vital issues relating to the administration of justice in the country, I would request to convey collective views of the bar so that these important constitutional matters may be resolved amicably in a dignified manner consistent with the highest traditions of this noble profession with which we are all privileged to be affiliated,” emphasised the Aug 31 letter.

The AGP recalled how the appointment of judges, other than most senior judges or chief justices of high courts, to the Supreme Court has been under discussion recently and reflects discord between views of members of the JCP and bar councils and associations.

The constitution is silent on this issue while the 2002 Supreme Court judgement in the case of SCBA stipulates that the seniority is not a mandatory requirement for the appointment of judges to the apex court, the letter said, also reminding historically there was a long list of such appointments to the Supreme Court.

However, the AGP conceded that the judgement has not been universally accepted and that there are divergent views both inside the JCP as well as amongst members of the legal fraternity. There are compelling arguments on both sides and the debate will continue until the parliament acts decisively one way or the other.

It cannot be denied, the letter said, the seniority carries with it a legitimacy that needs no other justification. Yet it is also a fact that seniority of judges is neither a specific constitutional benchmark for appointments to the Supreme Court nor it is borne by past practices in the country, the letter said.

As the Supreme Court is the last court of the country and has only 17 judges, there is force in the argument that the ideal principle for appointment of judges to it should be a blend of seniority and merit. While there is an objective standard for determination of seniority, merit is more flexible so that the semblance or possibility of any favouritism and nepotism in the process is completely excluded.

Amongst the criteria for performance evaluation of high court judges there may be multiple factors. Some of which may be mathematically determined on the basis of available dates while other factors would be informed by general evaluation and perception.

These could include reputation and public perception about integrity, independence and impartiality, health condition, length of service, number of cases heard and judgements delivered and not delivered, average duration between final hearing and delivery of judgement, commitment to constitutional values and fundamental rights, range and diversity of work, expertise in particular area, command over language, temperament and demeanour towards colleagues, the bar and the litigants etc, the letter said.

While the PBC has already nominated its member in the JCP, the AGP said he is determined to present the criteria for the consideration of the JCP in its next meeting and would make every possible effort to persuade other members of the JCP to adopt and make public such criteria leaving little room for disharmony on such vital issues as the appointment of judges of the Supreme Court.

The AGP also said that the JCP acknowledges and reiterates the need for the appointment of more women in the superior judiciary and confirms that there would always be at least one seat earmarked for the appointment of a woman judge in the Supreme Court.

Published in Dawn, September 1st, 2021