Bar politics, if it is for a public purpose, is a sacred job. However, it appears that bar politics in Pakistan is sometimes used to create monopolies in the legal profession and gain leverage against independent judges. It provides dividends to the beneficiaries of such politics; though it means devastation for professional lawyers and weakens the bar.
The recent round of bar politics begins with the elevation of Justice Mohammad Ali Mazhar to the Supreme Court and the nomination of Justice Ayesha A. Malik. Despite resistance by the bar councils, Justice Mohammad Ali Mazhar has been elevated while the Judicial Commission could not agree on the elevation of Justice Ayesha Malik. Notwithstanding protests by the bar councils, 41 junior judges have been elevated to the SC, bypassing more senior judges in the past. This raises a question: why have bar councils changed strategy occasionally? For example, at some point, certain political groups support the elevation of junior judges and at another time, they oppose such elevations. Does this inconsistent approach have a political purpose? Consider.
Those who opposed the nomination of junior judges to the SC argue that only the most senior judge of a high court could be elevated to the SC. They maintain that disregard of the seniority principle is against the Constitution of Pakistan. This argument needs careful examination. The relevant provisions for the elevation and appointment of judges to the SC are as follows:
Article 177 states that “[…] a person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and (a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court… or (b) has for a period of, or for periods aggregating not less than fifteen years been an advocate of a High Court…”
Article 175-A provides that there shall be a Judicial Commission of Pakistan…for the appointment of judges of the Supreme Court. For the appointment of SC judges, the commission shall consist of Chief Justice of Pakistan; four most senior judges of the Supreme Court; a former chief justice or a former judge member of the Supreme Court of Pakistan to be nominated by the chief justice of Pakistan; federal minister for law and justice; attorney-general for Pakistan; and a senior advocate of the Supreme Court nominated by the Pakistan Bar Council.
Why has a constitutional amendment not been pursued to secure the seniority principle or an objective criterion for judicial appointments to the SC to ensure judicial independence?
Articles 175A and 177 do not mention the seniority principle. Thus, an argument in favour of the seniority principle fails on the touchstone of the constitution itself. The most famous case referred to in favour of the seniority principle is the Al Jehad case (PLD 1996 SC 324). It held, inter-alia, that the most senior judge of a high court is entitled to be appointed as chief justice (except where concrete reasons are recorded by the executive). Thus, this case applies to the appointment of a chief justice of a respective court. It does not apply to the elevation of judges to the SC. In any case, the appointment of SC judges is fresh; it is not a promotion.
So, one may ask, why are elevations of SC judges frequently contested with reference to seniority? Why has a constitutional amendment not been pursued to secure the seniority principle or an objective criterion for judicial appointments to the SC to ensure judicial independence?
Likewise, the slogan of welfare of the bar is employed without explaining the contours of welfare. Some members of the legal profession are attracted to such a jingle without examining its hollowness and without demanding its execution for the welfare of the majority. Some of those who hold political office manage to capture the legal business. They also attempt to influence the courts with their political clout to get favorable and quick decisions. Political influence is sometimes used to undermine the independence of judges. The cases of junior and professional lawyers, on the other hand, are frequently adjourned or put to the cold storage for a later date. Most lawyers are victims of bar politics, even as they participate in it.
Members of the legal profession need to reflect on the process, strategies, aims, and outcomes of bar politics. Is it making the institution of justice strong? Is it helpful in the delivery of timely justice to the people? Has bar politics actually promoted judicial independence? An answer to these questions will help to redefine the objects of bar politics. These objects include the capacity building of lawyers and judges; the accountability of both the bench and bar; the regulation of bar politics; the promotion of judicial independence; and inclusion, equality, and non-discrimination in the legal profession.
The bar has a huge potential. Given the independence and potentiality of the bar councils, the nation expects greater responsibility as well. Thus, the bar must contribute to the betterment of judicature and the profession more actively and objectively. Vigilantism, monopoly, and corruption of any kind in the profession must be condemned. It will enhance the prestige of the bar, the respect of bar leaders, and public confidence in our justice system.