JUSTICE Ayesha Malik has been elevated to the Supreme Court. She is the first woman to have been chosen for the highest judicial forum in the country, and she fully merits the elevation regardless of her gender. She was chosen ahead of others more senior to her, and this is the second time the judicial commission met to decide her elevation after the first attempt had ended in a stalemate due to an unprecedented and united opposition to the repeat violation of the oft violated seniority principle for judicial appointments.

This issue has been much covered, and legal luminaries have debated for and against the principle of seniority in judicial appointments across both social and conventional media. Justice Malik has been caught in the whirlwind of this debate, and it has been unfairly suggested that her elevation is being opposed by those who are doing so because she is a woman. It has also similarly been falsely and unfairly suggested that her elevation is due to political alliances or reasons other than her judicial acumen.

Lawyers who argue against say that the conveyor belt of promotions by seniority is fit to deliver luggage, not justice. They rightly opine that the ability to adjudicate is at once a dynamic and subtle skill, a form of art on display. It cannot be reduced to some objective criteria of marks and math.

Lawyers who argue for seniority as a principle to hold to until we can decide on a better method say that it is at present the best way to avoid arbitrary elevations, which is most important. In this they have the support of the majority of the Judicial Commission of Pakistan, as even the attorney general has written of the need to lay down objective criteria for appointing a judge and the need to make the process more open. Justice Qazi Faez Isa has also recently written a note to the chief justice regarding there being a need for such criteria.

Our problem cannot be articulated without inviting scandal.

Lawyers against seniority as a principle for judicial elevation have always come back at the plea of the other side to hang onto seniority until we can have a better and more open assessment system in place by daring the other side to come up with any such system which makes any sense. Their assumption is that such a system cannot exist, and if penned down would invite only ridicule.

So the seniority side has done just that. They have put together a comprehensive white paper based on international best practices where they propose a system of marks and weightage to objectively determine who is best for a judicial appointment. They argue that the JCP must be made much more diverse than it currently is, and that it must include the representation of women, non-lawyers and nominees of parliamentary committees. They argue that seniority should be given some weight, and the number of reported, upheld and quoted judgments must be given marks. The commission should meet to a regular, predetermined schedule, and the interviews conducted by it should be recorded and made publicly available. There should be a formalised quota in the Supreme Court to allow for representation from every province, and a quota for women and minorities.

It is a brilliant series of ideas. But even if implemented in full, they can only promise a minimum standard. Whilst there are such objective criteria around the world as has been argued, these all exist to make it necessary that a judicial appointee meet a minimum standard. But that is not our problem.

The problem with our problem, is that it cannot be articulated without inviting scandal. And it cannot be solved completely by rule-making or protesting. It can only be properly solved subjectively, yet that is the very thing that breeds arbitrariness.

Make every criteria of appointment reform valid retrospectively, and you would still get Saqib Nisar as chief justice. Be­­fore he bec­a­­me chief dam engineer, he was a prolific and bril­­liant jurist — a constitutio­nal expert whose judgments are quoted abroad as examples of clear application of the law. Yet he stands accused by two former judges of giving in to external pressures and bias.

Our problem is that you don’t want a system of picking judges which is susceptible to external influence, particularly pressures from unelected quarters. This is why some of us clutch at seniority, in order to protect the Supreme Court from compromised appointments. Others hold onto subjectivity for precisely the same reason: they have enough faith in the senior judiciary to withstand such pressures and feel any mathematical reduction of this choice would lead to a long-term victory for those who seek undue influence.

Our problem has come under the microscope after the attempts to unseat Justice Isa. It has been observed that this was just an attempted pocket-picking; and that the long con is far more sinister and far better planned. There are elevations and rewards waiting for those who meet this country’s only real objective criterion, set by those referred to in print only as the ‘establishment’: you’re either with us or against us.

The writer is a lawyer.

Twitter: @jaferii

Published in Dawn, January 12th, 2022