It is also crucial to mention here that it would be devastating if the tenure of office of a judge is in reality made dependent on the acceptability of his judgments by those wielding power, and the prospect of further elevation of a judge are jeopardised by reason of his judgments not being well received by certain quarters.

           Justice Maqbool Baqar

The Judicial Commission of Pakistan’s (JCP) decision to nominate Justice Ayesha Malik for elevation to the Supreme Court has polarised opinions across the bar and the bench. While many have rightly celebrated the appointment of the first woman to the Supreme Court in a country where women have long been subjugated and where violence against women has seen an alarming increase, bar associations have taken to the streets in protest. Some may dismiss these protests as an expression of the deep misogyny that characterises the legal profession, but the furor over such protests misses one critical question: Why has the JCP refused to lay down a criterion for judicial appointments? This question is particularly pertinent with reports suggesting that two senior judges of the Supreme Court too have urged the JCP to develop a criterion before considering future appointments. Does the bar associations’ demand for greater transparency in judicial appointments then hold any merit?

Keeping in view that Pakistan has witnessed a ‘judicialisation of politics’, a phenomenon where questions of public policy and the settlement of purely political disputes are often entrusted to the courts, the appointment of judges generates more interest here than in many other democracies. The Supreme Court of Pakistan, for instance, may be the only constitutional court in the world to have disqualified two elected prime ministers in a span of five years. Moreover, recent events such as the initiation of disciplinary proceedings against a judge of the apex court believed to be unamenable to the government’s diktats has raised concerns about attempts to emasculate the judiciary by influencing the process of judicial appointments.

Inevitably, therefore, the increasing frequency with which the JCP has nominated junior judges for elevation to the Supreme Court has raised whispers and murmurs of court packing. It is worth mentioning that while the Constitution does not compel the JCP to only make appointments on the basis of seniority, an overwhelming majority of the current judges of the Supreme Court were, in fact, appointed in keeping with that principle. Nonetheless, departure from the principle of seniority and JCP's concomitant refusal to lay down any other principle or criteria which regulates the chief justice’s discretion to nominate judges for elevation renders proceedings before the commission entirely opaque. Furthermore, given that the chief justice remains the sole authority to nominate judges before the JCP and that minutes of the latter’s proceedings are not published, the public has no way of ascertaining why a junior judge was elevated in place of their more experienced peers.

A petition filed by the Sindh High Court Bar Association to structure the chief justice’s discretion with respect to judicial appointments; resolutions passed by bar associations throughout the country; and protests after the elevation of a junior judge from the Sindh High Court have all remained unanswered.

The call for protests in the wake of Justice Ayesha Malik’s elevation, therefore, is not the expression of misogynistic rage that some are convinced it is. To the contrary, it is the culmination of a struggle which has repeatedly put forth a simple demand, which is that the judiciary uphold the same standards of objectivity and fairness that it expects from every other institution. Given that the JCP would be filling more than six vacancies at the apex court by the end of the current year, the perils concomitant with unbridled discretion can hardly be exaggerated.

Justice Oliver Wendell Holmes of the United States Supreme Court once said that “the life of the law has not been logic, it has been experience”. And experience suggests that uninhibited discretion, particularly when vested in unelected institutions, can lead to outcomes that may not fulfill the need for meritocracy and fairness, thus, stunting the development of institutions.

As the principles of democracy wither, so does the public’s faith in procedures and processes. Will we then disregard predictability and procedural fairness where the ends suit us? And will we celebrate momentary gains even when we're confronted with the peril of backsliding democracy chipping away at the judiciary’s independence? Will the JCP endeavour to create consensus and make its procedures more transparent, thus, preserving the public’s faith in its functioning?

The fate of judicial independence hangs in the balance. Let us tread carefully.