THERE has been a heated debate going on over the past year or so about judges’ appointments and whether the criteria for appointments should be based on seniority or some multifaceted formula. With respect, I have always felt that the debate was somewhat premature.

Read: Judges' appointments — seniority vs merit

Why, you may ask. Well, firstly, the debate isn’t so much a consultation with the actual decision-makers, who have the power to make changes, as it is a discussion among activists vying for the stakeholders’ nod for their version of what change must look like. The difference may be miniscule, but it is significant. A discussion with stakeholders keeps the focus on the institution’s willingness, or lack of it, to become more transparent and open about how it appoints judges. It keeps the emphasis on the institution’s accountability as opposed to which amongst the two varying public positions on judges’ appointments is right. In short, it keeps the focus on the institution’s response and not the public’s opinion on what transparency is.

Secondly, this debate assumes that the stakeholders actually agree to changing the manner in which judges are appointed, whereas in reality, the silence from the stakeholders is deafening.

In this heated, and at times bitter, public discussion about what criteria should be adopted, we have seen very little by way of an institutional position or input. Yes, there have been occasional statements and nuggets from time to time in the press about how the chief justice wants criteria, or how the Judicial Commission of Pakistan has purportedly agreed to consider certain limited and broad-ended aspects, which perhaps were already self-evident, but there has been nothing substantive or forceful, and certainly nothing which would meet the test of transparency expected of any public institution, let alone enough to convert the perception of a spectator judiciary becoming an active participant in the discussion.

Thirdly, the debate assumes that if nothing else, the stakeholders are at the very least taking note of the debate and pondering over the issue. Personally, I am not convinced. If anything, the lack of cohesion and unity in the public arena allows public institutions greater space to continue with the status quo, at the same time relieving any pressure created over time.

Would controversies have arisen about judges’ appointments if open criteria had been announced?

Hence, on all three counts, unfortunately, there seems to be little utility to a debate which is divisive amongst the public and yet not penetrating enough to force engagement with the powers that matter.

And what situation does that give rise to? Well, it creates a scenario in which decisions made, even if well intentioned, can have polarising and problematic consequences for the overall stature of the institution itself. The most polarising of topics become a source of paralysis, whereas even the most mundane of decisions tend to turn controversial.

Recent issues pertaining to the elevation of the current chief justice of Sindh come to mind, as well as the appointment of junior judges to the Supreme Court, without the disclosure of the rationale for the same.

However, something more troubling has recently occurred. And that is why I feel criteria are needed now, more than ever before.

On June 23, 2022, the Sindh Bar Council addressed a letter to the chief justice of Pakistan in which it discussed how certain names had been included in an initial list of possible appointees to the Sindh High Court, and how such names were subsequently dropped and replaced by others. The Sindh Bar Council was talking about two lawyers of the Sindh High Court — Ms Sana Minhas and Mr Kashif Sarwar Paracha.

Both lawyers have a good standing in the high court and would make great judges by all accounts. However, as circumstances would have it, their names were apparently dropped, and as per the Sindh Bar Council, this was perhaps done on account of pressure being exerted on the judiciary with regard to the candidates’ ethnic origins.

One hopes this is not true, but if it is, it would be a troubling development.

The Sindh High Court has been known as one of the most competent high courts of the country, with an illustrious history of being a judicial powerhouse. It has always stood out for its dedication and commitment to merit, and for the appointment of judges on the basis of competency and standing as opposed to a candidate’s family linkages or roots in one province or the other.

Even if these are simply ill-founded rumours, the very fact that such a conversation is taking place should be reason enough to evolve criteriaand put this issue to rest. In fact, there could be no better reason for doing so.

After all, would such controversies or rumours have arisen if set and open criteria had been announced by the Judicial Commission of Pakistan earlier? Would such pressure have even been exerted, and if so, would it not have been easier for the judiciary to withstand it, had the institution been armed with objective criteria which would perhaps be ‘ethnicity’ blind and competency-minded?

Read: Why transparency in judicial appointments is critical

This latest controversy is an alarm bell ringing in the background, a neon sign of what’s to come, and for lack of a better description, a red flag fluttering in the winds for all to see. The warning could really not be more apparent.

But are those capable of heeding the warning shot listening? Are they even paying attention? Do they foresee the direction in which we are going? And do they realise that they cannot wish this issue away, and that indecisiveness may not only delay things, but also make an already controversial process even more polarising? We need transparency, openness and a decision from the judiciary. And we need it sooner rather than later.

The writer is a lawyer based in Karachi

basil.nabi@gmail.com

Twitter: @basilnabi

Published in Dawn, July 15th, 2022