In his article on this site, “Seniority versus Merit: A Wrong Binary Number” (5 comments on my article ‘Seniority and Appointments of Judges’ posted on this site on July 19th. Ahmed and I consent to the acceptance of seniority as overriding principle for nomination to the Supreme Court of Pakistan. He seems to prefer it. I don’t. Let’s look further.
The current controversy over the appointment of a relatively junior judge of the Sindh High Court to the Supreme Court of Pakistan raises several general questions of principle to which there are clear correct answers but no credible mechanism for arriving at the correct solutions. The best should be called to the Supreme Court, but how do you come to an agreement on who is the best?
This particular survey, recommended by a wafer-thin majority of 5 to 4 at the July 28th session of the Constitutional Judiciary Commission to consider such surveys, has also raised issues of context and manner specific to it . A few weeks ago a 5-4 majority decided to postpone the appointment of the “junior” judge. One member, a serving honorable judge, appears to have changed sides and changed the majority for unclear reasons. The bar associations have called for reasons to ignore judges who preside over the higher-ranking judge. A reason that could be considered plausible was not given. There are many rumors that the survey is part of a judicial campaign for a so-called curative review in a case involving the judiciary. These are times of sadness and crisis at the forefront of justice.
Ahmed is calling for seniority as the basis for appeal to the Supreme Court pending a process to determine the relative merits of judges at different seniority levels. Only then should the relatively younger judges be preferred to the higher ones for Ahmed. The fact that Ahmed’s advocacy of seniority depends on the lack of a more sophisticated process means accepting seniority inadequacy as the primary basis for Supreme Court nomination. However, neither he nor the bar associations have suggested the contours of the more nuanced mechanism.
The life of law is indeed experience and not (always) logic, as the eminent American lawyer and judge Oliver Wendell Holmes, quoted by Ahmed, famously noted. One only has to look at the chief judges and chief judges of the highest courts for the past, say, thirty years to forego senior appointments to the Supreme Court. If you look at those of the elders who have not been promoted to the Supreme Court, one is grateful that seniority has not been used as the overriding principle in the appointment of judges.
A decade-old personal memory has remained of one of the senior judges of the Supreme Court, known for his legal expertise and impeccable in terms of financial correctness, who was not raised to the Supreme Court of Pakistan. The memory is of his lordship, who refused bail to a ten-year-old minority child, with the remark spoken aloud but not written in the instruction: “Evil must be nipped in the bud.” A few months later I happened to meet his lordship at Lahore airport while waiting for the flight to Delhi to attend a conference on the right to information. When his lordship saw my destination, he said that he would like to cross the border in a tank. Personal memories condense into collective wisdom from experience.
While the denial of seniority as the primary basis for surveys may have prevented the appointment of some with clouded vision, it must be accepted that discretion works both ways. Indeed, a discretionary process for increases has increased those who later went along with anti-democratic plans or contributed to deepening misogyny. In response to my reference to the 1956 Tamizuddin case, Ahmed reminds us that the author of the verdict in this case, Chief Justice Munir, was handpicked by then Governor General Ghulam Mohammad in order to give federal court preference over those older than him are. However, this does not prove that those who reach the Supreme Court via the conveyor belt method of seniority always oppose attacks on the democratic process or do not act with prejudice against communities that nip them in the bud.
There is no getting around a judicial appointment process in which the scope for discretion is structured not only through a narrow-minded rule of seniority, but also through debate and an exchange of views. The exercise of discretion that satisfies all sides of a debate is rare. Given that the judicial function is so crucially dependent on intangibles as vision and inclination, there cannot be a perfect process for appointing judges. The aim is to be transparent in how the debate is conducted and all relevant considerations are taken into account in the appointment. It is often important to understand that the perception of bias or regressive thinking in an incumbent Supreme Court judge who is being considered for appeal to the Supreme Court is not reflected in the reasons formally given for refusal. Ultimately, those who are appointed to forums that make recommendations or make decisions about highest government offices must be credible in order for their recommendations and decisions to be universally accepted.
Lack of credibility is an undesirable attribute that undermines much of the country’s institutional framework, even when the rules in place provide for security and independence. For example, the chairman of the National Accountability Bureau is appointed by bipartisan political consensus. The chairman has an indefinite term of office and full functional independence. One would expect the NAB to be an institution dedicated to the cleansing of public life under the direction of eminent leaders who may have no other aim than a high-minded public service. The reality that is actually delivered is generally perceived as less than great. Poverty of mind and a desire to serve the interests of those in power seem to overwhelm the formal independence afforded by the rules. Why is that? Why are surrender and the accompanying lack of credibility so ubiquitous in our governance structures?
While the constitution prescribes a mechanism for appointing judges, repeated attempts by various “de facto watchdogs” to overwhelm the system have tarnished this mechanism’s credibility – at least in the eyes of the nationwide protesting bar associations. On paper, the constitutional requirement for the appointment of judges by a judicial commission and a parliamentary committee seems sufficient and has been hailed as one of the achievements of the 18th constitutional amendment. In practice, the constitutional mechanism has produced results that have not escaped accusations of nepotism and partisanship in the judiciary.
In the past few decades, commissions – with members from the judiciary and civil society – for appeals to the highest level of justice have been established around the world. The commissions in South Africa, the UK and Canada have worked reasonably well, generating appointments that are nowhere near the controversial appointment of judges in Pakistan. The problem is credibility instead of a lack of rules.
How does credibility fit into a country’s government and legal framework? The Asghar Khan case, ruled by the Pakistani Supreme Court in 2012, provides a window to understanding the institutional credibility and lack of it. This case related to the manipulation of the democratic constitutional process during and after the 1990 general election. The case was registered as a human rights issue in 1996 and snaked for no good reason but an overwhelmingly bad reason until 2012 when it was finally recorded. The then army chief and the ISI chief were blamed for the conspiracy to undermine the parliamentary elections of 1990. The Supreme Court ordered immediate criminal prosecution in accordance with the relevant laws. After nine years, not a finger on the prosecutor’s office has moved. No one is particularly concerned about the implementation of a judgment that should provide for retribution for adversity. A frightened government has tried repeatedly since 2019 to officially end the terminally ill implementation process. The court appealed. Fear and credibility don’t go well together.
The bar associations are completely right in delving into the process of appointing judges and asking the questions they have asked regarding the appointment of the relatively junior judge of the Sindh High Court to the Supreme Court. Any such appointment should be considered on a case-by-case basis to increase the credibility of the process. However, increasing seniority per se, as the predominant principle in the appointment of judges, is to expose the judicial system to gamble. We deserve better than a conveyor belt that delivers valuable things as often as flotsam.
The author is an attorney for the Supreme Court of Pakistan.
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