Opacity erodes the public’s trust and confidence in the judiciary. The judiciary would, therefore, do well to hold itself to the same standards of transparency, objectivity, and meritocracy that it holds every other institution to. — Justice Maqbool Baqar

IN early 2019, the Judicial Commission of Pakistan (JCP) approved the nomination of justice Qazi Amin to the Supreme Court, shortly after he retired from the Lahore High Court while being 26th on the list of seniority. Writing for these pages after justice Amin’s nomination, this contributor had bemoaned the opacity that shrouds the commission’s proceedings and the fact that judges not confirmed by the commission have their competence questioned while also becoming victims of unwanted whispers and murmurs. Such concerns may have been dismissed as exaggerated at the time, given that justice Amin’s nomination has been approved unanimously. Nonetheless, nearly four years later, the issue of appointments to the apex court has fractured relations between the bar and the bench while also paralysing the functioning of the court. Moreover, given the escalation of differences between the chief justice and the senior puisine judge, as evident from the bitterness that characterised the previous meetings of the commission,it may be time for each side to take a step back from and review their unflinching positions.

Read: Process of appointment of SC judges

The seniority principle: While a section of the judiciary and the majority of bar associations advocate fidelity to the principle of seniority in the absence of objective criteria for judicial appointments, another section of judges insists that merit alone ought to dictate appointments to the apex court. Nonetheless, the seniority versus merit binary is entirely illusory given that the two are not mutually exclusive. Additionally, the life of law, in the words of justice Holmes, “has not been logic. It has been experience.” Experience suggests that unbridled powers, particularly when vested in unelected institutions compromises the quality of decision-making and stunts the evolution of democratic institutions. Having said that, can seniority become a straitjacket even where there are compelling reasons to depart from it or should seniority merely be a starting point? Additionally, while bar associations and a section of the judiciary continues to insist on an objective criterion, can a function as subjective and qualitative as the dispensation of justice be reduced to a precise formula based on metrics such as a judge’s rate of disposal and the number of decisions overturned on appeal? More critically, where do we go from here?

The seniority versus merit binary is entirely illusory given that the two are not mutually exclusive.

Amending the procedure: Article 175A of the Constitution provides that a judicial commission, comprising judges, members of the bar, and members of the executive, shall nominate judges to the Supreme Court. Introduced through the 18th Amendment,the purpose of Article 175A was to democratise the process of judicial appointments by making it more inclusive and representative. Notwithstanding the unanimous passage of the 18th Amendment, however, Article 175A was watered down through the promulgation of the JCP Rules, 2010, by judges who continued to view the executive’s role in judicial appointments with suspicion. Keeping in view the fact that the 2010 Rules were framed in the aftermath of the lawyers’ movement where chief justice Chaudhry came to symbolise the public’s desire for the rule of law and a democratic dispensation, at the centre of such rules lies a desire to protect the court from judges who may be susceptible to extraneous pressures and would, thus, be amenable to validating undemocratic interventions.

Unsurprisingly, the rules conferred unbridled powers on the office of the chief justice, with Rule 3 of the JCP Rules stipulating that only the chief justice of Pakistan shall have the power to initiate nominations to the Supreme Court. Nonetheless, the opaque structures that were established by the judiciary to shield itself from undemocratic interventions now threaten to erode its credibility. While it would be remiss to not acknowledge the manner in which successive regimes have endeavoured to emasculate the judiciary, judicial independence may not be used as a tool to preclude accountability and consolidate all powers in the office of the chief justice. Needless to say, Rule 3 ought to be amended to bring the same in line with the spirit of the Article 175A and to allow all members of the commission to initiate nominations. This would not only democratise the process of judicial appointments but also address concerns with respect to certain judges not being considered merely because the chief deems them unworthy of being appointed to the Supreme Court.

Present crisis: While the elevation of Justices Athar Minallah and Hassan Azhar Rizvi is a welcome development, the decision to defer the appointment of Justice Shafi Siddiqui and the repeated refusal to initiate the nomination of Justice Aqeel Abbasi is likely to engender feelings of disenchantment amongst two of the finest judges at the Sindh High Court. Given the importance of maintaining the federal character of the Supreme Court, and considering that three of the five vacancies at the court emanate from the retirement of judges from Sindh, the JCP ought to amend Rule 3 and initiate the nominations of both Justice Abbasi and Siddiqui.

Will the members of the commission review their positions in the interest of preserving the legitimacy of the apex court? Will the process of judicial appointments be amended to make it more inclusive or will judges who are censured for being nominated despite being junior continue to face unnecessary embarrassment due to the commission’s failure to undertake meaningful reform? More critically, can those dispensing justice at the high courts expect justice from their own colleagues? The fate of judges and the fate of justice hangs in the balance.

The writer is a lawyer.
Twitter: @MoizBaig26

Published in Dawn, October 29th, 2022