On December 24, 2020, it was announced that Chief Justice of Pakistan Gulzar Ahmed had again proposed the nomination of Justice Ayesha Malik to be appointed as a Justice of the Supreme Court. While most female lawyers and some male colleagues welcomed this nomination, the same day the VC of Pakistan Bar Council, Khush Dil Khan issued a press release expressing his ‘serious reservations’ regarding ‘violation’ of ‘seniority principle’ for ‘elevation’ of judges. He followed it up by reiterating how seniority was a ‘consistent’ stance of the legal fraternity and ended on a threatening note that any attempt to violate the seniority principle will be resisted with ‘full force and zeal’ by the legal fraternity.
Except however, there is no such seniority principle as claimed by the VC and his compatriots. For now, contrary to what is alleged, it is only a demand of some of the Bars and its members as opposed to that of the entire legal fraternity and in this way, a false and incorrect hype is being created as if to show that a violation of some sacred principle has occurred – when no such principle exists in the first place.
There is therefore, intellectual dishonesty in insisting on an imaginary principle when none exists and to try and pass it off as a sacred rule of sorts which it is not is just incorrect. To threaten agitation for not implementing what doesn’t even exist is even more absurd. Let us hope that a singular view of the VC of Pakistan Bar Council is not ultimately the view of the body as a whole.
So, where does this confusion arise and what exactly does the law and constitution say about this?
The judicial appointments process has been the subject of much controversy and debate both prior and post the 18th and 19th amendment of the Constitution. Prior to 18th amendment, the biggest concern related to need for judicial independence from the executive. However, the solution devised in the aftermath of the devolution ended up concentrating the power of initiating nominations for judicial appointments in the hands of the Chief Justice, to be finalised with consensus of the members of the Judicial Commission of Pakistan and a ceremonial nod of the Parliamentary Committee.
This left the process tainted with allegations of arbitrariness and lack of transparency that again led to undermining of public confidence, especially of the members of the legal fraternity in the judiciary, who responded with what to their mind seems like a more certain and less political process of appointment of judges – i.e. on the basis of seniority.
They demand this in a bid to curb the current prerogative of the Chief Justice to ‘pick and choose’ the nominees for such appointments in the hope that this would ensure that there was no favoritism or ‘out of turn’ appointments to constitute the apex bench of their heart’s desire for political gains. They also call for greater provincial representation in the apex court and insist on seniority being applied as an interim measure until principles and processes that can ensure such representation are agreed upon. Anything but the arbitrary power of the Chief to initiate nominations that is.
However, while it is true that the existing process of judicial nominations does in fact need to be reformed and made more transparent and structured, the demand for seniority being applied even in interim is hardly the desired solution they think it is.
They demand this in a bid to curb the current prerogative of the Chief Justice to ‘pick and choose’ the nominees for such appointments in the hope that this would ensure that there was no favoritism or ‘out of turn’ appointments to constitute the apex bench of their heart’s desire for political gains.
Consider: Article 175-A read together with A 177 of the Constitution and rule 3 of the Judicial Commission of Pakistan Rules 2010 that lays down the current process for judicial nominations makes no mention of the words ‘senior most judge’ for appointment in its language other than that for the Chief of a given court. This position is also supported by a pre 18th amendment case, the 1996 Al Jehad Trust Case also widely known as the Judges’ case and again in 2002 in Supreme Court Bar Association v Federation of Pakistan in which it was held that seniority was a requirement only for appointment of the Chief of any court and not for appointing any other judge of the court.
In their view, the consultative process envisaged in the constitution for nomination and appointments of superior judges will become redundant and superfluous if the rule of seniority is held applicable to the appointment of the Judges of the Supreme Court because in that eventuality the process would become automatic and mechanical. In other words, what would be the need for having a Judicial Commission of Pakistan if a conveyor belt system of ‘elevating’ judges is to be adopted?
This brings me to the second point. Often the word ‘appointment’ is used interchangeably with the word ‘elevation’ which creates the misconception as if they are one and the same thing. As a result of this conflation, you would often hear legal ‘fraternity’ talk about how ‘seniority’ was being ‘violated’ or ‘overlooked’ or you may have heard them talk about an ‘out of turn’ appointment as if there is right of passage based on age and experience.
This conflation leads to the confusion that elevation is a matter of right after reaching a certain age when in fact this is not the case. Not only does the constitution not mention that the senior most judge ought to be considered for appointment, the judges in 2002 categorically stated that appointments to the Supreme Court are considered fresh appointments as opposed to elevations. Therefore, it is incorrect to accept the narrative that the ‘seniority principle’ has not been ‘followed’ or has been ‘overlooked’. How can something be overlooked when it isn’t even a requirement under the law or constitution?
Likewise, it is also incorrect to pitch one judge against the other by speaking in terms of ‘out of turn’ appointments because there are no turns. Each nomination should be perceived on the basis of the strength of each individual candidate as opposed to being ‘over’ or in relation to any other judge. This is because, the law even as it currently stands, does envisage scope for lawyers with over fifteen years of practice to be considered for nomination directly as a judge of the Supreme Court without having ever being appointed as a judge at any level, so it really is not a question of nominating one over the other but more a question of taking each individual nomination as a separate and distinct case as otherwise, why would the law put a lawyer who has never been a judge, let alone that of High Court to be in the similar position of having the possibility of being nominated as a judge of the Supreme Court?
Moreover, it is important to be mindful of the fact that once seniority is entrenched as a principle even in the interim, then a right will have been created of the senior most judge to be ‘elevated’ and there will be no going back from it towards more holistic reforms that can ensure actual representation of underrepresented groups in the apex court which is what one of the basic demands of the bar really is. Therefore, if representation is the actual end goal, it makes no sense to entrench seniority even in the interim because seniority does not and cannot guarantee representation.
The evolving global standards and principles now favour a more merit based, diversity focused and open system of judicial appointments as opposed to one that is stuck purely on seniority the world over, whether you look at the Latimer house principles, or the amendments in the UK in shape of Judicial Appointments Commission in 2005, the initiatives undertaken by Ontario and other commonwealth countries.
In Pakistan however, until such time that we remain fixated with colonial concepts like seniority and continue tying the honour, respect and morale of a senior judge with perceived entitlement for elevation, no real dialogue or reforms towards greater representation will ensue. Therefore, one needs to stop looking at these nominations as a competition between one judge over the other and instead embrace the idea of accepting merit as a basis for appointments in superior court.
Once seniority is entrenched as a principle even in the interim, then a right will have been created of the senior most judge to be ‘elevated’ and there will be no going back from it towards more holistic reforms that can ensure actual representation of underrepresented groups in the apex court
Only when we are able to embrace this concept can we effectively sit and talk about what that merit-based criteria would look like. Otherwise, we will keep confusing it with honour of a senior judge which really is not what this is about. It is not a question of one judge over the other. It is not a competition nor is it a ‘conveyor belt’ system. We need to stop pitching judges against each other. No one is being considered over or in relation to another judge. Each person is viewed individually on a case to case basis.
Thus, if seniority is not a constitutional nor a legal requirement for nominations of judges other than that of the Chief, one is forced to wonder why some elements from the bar would take such a strong stance and interfere and threaten agitation against the Judicial Commission of Pakistan for doing exactly what they are constitutionally mandated to do as per existing law?
It makes no sense to direct the force and hostility towards the proceedings of the JCP that are in accordance with existing law when the issue is actually for the Parliament to resolve via a constitutional amendment for bringing greater transparency in the process of judicial nominations by amending A 175-A and/or other related provisions.
By not pressing for more holistic reforms for affirmative actions towards representation and not channelizing their efforts towards forums where such reform can actually come from and threatening instead to hold JCP hostage for doing their current job, one would be forced to really question and wonder about all the ulterior motives as opposed to genuine desire for reform which is clearly missing from their statements and strategy.
All conferences and conventions they host concerning this are all male, all press releases they issue threaten agitation that is misplaced and it is farcical how the stress is on implanting a non-existent so called principle that could be the wish of the Bar but is certainly not what the constitution or the law currently requires so it is a little pretentious of the Bar to threaten resistance with full force and zeal for something that really isn’t even a violation.
What is even more farcical is that successive opportunities to propose genuine and holistic reforms for representation in the apex court have either been missed or reduced to demands for a non-solution in the shape of seniority which helps no one.
For instance, if the Bar could resist, threaten and demand seniority which is a non-solution so zealously, why couldn’t it go on and come up with more recommendations and best practices from world over to come up with a comprehensive list of hard and soft measures that could be adopted for transforming the appointments process from arbitrary to transparent and/or structured like their female counterparts have done so through various letters, statements, op-eds and other channels of public discourse?
Why also, can they insist on a non-existent so called principle and at the same time overlook those that actually exist in the constitution such as for instance, Article 25 and 34 of the constitution that not only call for equality of citizens, non-discrimination on basis of sex and full participation of women in national life but go a step forward to safeguard the right of state to take affirmative actions for women and children?
From this, it follows that given that the Bar Councils, the Judicial Commission of Pakistan and the Courts are all public institutions, they must operate within the framework of the constitution including Articles 25 & 34. The Bar could have chosen to stand up for these as well, but it didn’t. Instead, it chose to continue to fuel the false narrative of ‘seniority’, ‘elevation’, ‘violation’ etc and always at a time when a JCP meeting to consider proposed nominations is due to be held.
In summer of 2021 they also led a successful hostile campaign to pressurise the JCP from considering the proposed nominee who could have been the first female as a justice in the Supreme Court of Pakistan and now again, they have started to show resistance based on false entitlement when a female known for her competence is being considered. So, who is really influencing the composition of the Bench here? The arbitrary JCP or the insecure Bar? And all this, after Pakistan Bar Council posited itself as open to gender mainstreaming in judiciary by supporting the panel talk at the Asma Jahangir Conference held in November 2021. Was that their true face or this and is this a case of genuine misconceptions about the judicial appointments process or a deliberate interjection by fueling false narratives to influence the existing judicial appointments process?