The current debate around how judges should be appointed raises essentially political questions about whether judicial ‘primacy’ in appointments is essential and the role the public and elected representatives should play in the appointment process. The questions to be addressed in this debate are not limited to concerns about how we get the most competent judges in the Supreme Court or how we maintain harmony in the superior judiciary. It is a question of the role we want the judiciary to play in our fragile (or ‘hybrid’) democracy.
The current crisis began with the nomination of Justice Mazhar to the Supreme Court. Bar associations protested because more senior judges in the Sindh High Court were overlooked for nomination. In spite of the bar’s protests, the nomination was approved. This was followed by the nomination of Justice Ayesha Malik – a historic nomination because if appointed, Justice Ayesha Malik would have been the first woman to sit in the Supreme Court of Pakistan, the only country in South Asia that has never seen a woman sit on its highest court. Her appointment would have been a milestone.
Bar associations protested against her nomination again because she was not the senior-most judge in the Lahore High Court, calling for a boycott of court proceedings on the day the Judicial Commission was to meet to consider her nomination. The Judicial Commission did not approve Justice Malik’s appointment and so the opportunity to see a woman on the Supreme Court was lost.
How did we get here?
Over the years, the superior judiciary has secured its primacy in deciding who should be admitted in its ranks. The 1996 decision in Al-Jehad Trust established the primacy of the Chief Justice in the appointment process. The judiciary insulated itself from the executive and legislature – formally – reasoning that judicial independence demands it. The 18th amendment was designed to give some role to legislators in appointments with the introduction of a parliamentary committee that was to review the decisions made by the Judicial Commission.
If appointed, Justice Ayesha Malik would have been the first woman to sit in the Supreme Court of Pakistan, the only country in South Asia that has never seen a woman sit on its highest court. Her appointment would have been a milestone.
The 18th amendment was challenged before the Supreme Court in Nadeem Ahmed v. Federation of Pakistan. The Supreme Court, without striking down the 18th amendment, stated that the veto power of the parliamentary committee violates judicial independence and gave Parliament the opportunity to amend the role of the parliamentary committee.
A subdued Parliament compiled and passed the 19th Amendment, which essentially gave the Judicial Commission the final say in appointments. In the Munir Bhatti case, the Supreme Court reinforced the diminished role of legislators, holding that any decision of the parliamentary committee would be subject to judicial review.
Until very recently, bar associations did not have a problem with this status quo. Justice Faiz Isa’s reference before the Supreme Judicial Council, however, gave rise to misgivings that the superior judiciary may not be entirely fair when it comes to accountability within its ranks and this has created questions about character and credibility. It has led to suspicions about the Judicial Commission’s decisions and distrust of the nominations process. The fact that Judicial Commission proceedings are held in secret has reinforced this distrust.
Why did Bar Associations oppose Justice Ayesha Malik’s nomination?
Bar associations opposed the nomination of Justice Ayesha Malik on the same basis that they opposed the nomination of Justice Mazhar, which suggests that the opposition was based on principle rather than misogyny. But perhaps one question that can be posed to the bar associations is this: if something good is coming out of a defective system – and reform to the defective system will not take place overnight – did their opposition have to be as vocal as it was? Perhaps they should have acknowledged the historic nature of the nomination while vowing to continue their momentum for reform.
The assessment of the calibre and suitability must be and should be a subjective process and will never be reduced to a robotic assessment
Is there a way out of this deadlock? The proposed solution by bar associations is this: that the judicial commission “frame transparent and objective criteria for the appointment of judges at all levels” and that until then the judicial commission should strictly adhere to the “seniority principle in appointments to the apex court.”
While the introduction of criteria may help a little, it will not go to the core of the problem. Introduction of criteria will not and should not eliminate discretion. Criteria may help to ensure that all the factors that should be considered are in fact considered, for example, legal acumen, quality of judgments, gender and ethnic diversity.
But the assessment of the calibre and suitability must be and should be a subjective process and will never be reduced to a robotic assessment. This means that where players in the system inspire mistrust and are shut off from any external input or assessment, their decision can at any time be suspect, giving rise to crises of credibility.
Let’s face it: the current crisis is due to ‘informal’ influences and tweaks to the formal process will only get us so far.
We should acknowledge that a cause of the current credibility crisis is that the doctrine of judicial primacy was taken to an extreme. We all watched when parliament was side-lined and judicial commission proceedings were removed from any public oversight. If we want to check ‘unfettered’ discretion, we have to resurrect the role of the Parliament – and by extension public debate – in the judicial nomination process. This is in fact one of the demands from bar associations, which have called for a repeal of the 19th Amendment.
A lesson from this deadlock is the lesson we should draw from every constitutional crisis in this country – we undermine parliamentary politics at our peril. In a country as complex and diverse as Pakistan, our judiciary has no choice but to give deliberative democracy a chance.