THE approval of three judges for elevation to the Supreme Court by the Judicial Commission of Pakistan is, unfortunately, not the breakthrough it was hoped to be. On Monday, though the forum unanimously agreed on Islamabad High Court Chief Justice Athar Minallah, its approval for Justices Shahid Waheed and Syed Hasan Azhar Rizvi of the Lahore and Sindh high courts, respectively, was by a wafer-thin margin. The latter two, both fourth on the seniority list of their respective courts, were nominated only because the attorney general and the law minister seemingly changed their earlier stance on their eligibility. The government representatives’ surprising U-turn on the matter subsequently invited speculation over a quid pro quo arrangement between the government and the apex court.

Though filling pending vacancies in the apex court has been a matter of considerable urgency, the process remains arbitrary and subject to individual discretion, which leaves it open to needless and damaging controversies. This voting divide represents a pattern that has been seen frequently in recent months whenever the JCP has considered elevating judges based on criteria other than the so-called principle of seniority. It is worth recalling that a vote on the nominations of Justices Waheed and Rizvi had failed by the same margin in July, and Justice Ayesha Malik, also junior to her colleagues at the time of nomination, had been approved by the same margin in January after initial deadlock over her eligibility.

Despite various stakeholders repeatedly urging the chief justice to formalise a nomination and assessment process, it appears that substantial efforts have yet to be made towards this end. This is unfortunate, as this means that controversy can follow the appointment of any judge to the Supreme Court. The divisions arising from the split over the new nominations — as evidenced by the various bar associations and councils in Sindh going on strike on Monday — are bad for both the judiciary and the two junior judges. They cast a needless shadow, even though the nominations may be well deserved. Similarly, even though he has cited different reasons for his decision, the decision of Law Minister Azam Nazeer Tarar to resign soon after the JCP meeting is being seen as a form of protest against allegedly being made to vote against his wishes. It is concerning that the superior judiciary appears so divided while the country navigates one of its most turbulent periods in recent history. There may be a valid argument for the elevation of judges based on merit rather than seniority alone, but it is also important that the criteria for elevation be objective and holistic. The chief justice had previously expressed displeasure over the fact that his nominees had been blocked by other members of the JCP. Would it not be better if any future decisions were to be based on reasoning that others would find difficult to contest?

Published in Dawn, October 26th, 2022