Questions are raised when power is vested in a single institution or office in a non-transparent manner. In Pakistan, the office of chief justice of any court falls in that category.
The chief justice, being the senior most judge, yields significant arbitrary powers pertaining to the court’s administration. These include, composition of benches, fixation of cases and nomination of judges against vacancies in their respective courts. However, any attempt to reform these processes via constitutional amendments have been rendered largely ineffective due to successive rulings, rendering such matters justiciable before the courts on the pretext to uphold the doctrine of separation of powers and independence of judiciary. Critics of this arrangement from among the Bar have often expressed their uneasiness with the way such powers are structured and/or exercised due to the fear that the same may be easily manipulated by political and non-political forces to achieve outcomes in important matters that suit and serve needs of the time.
The tainted past of the activist judiciary does not help its case much. The reasons to be skeptical about such an arrangement of power are surely not without merit. However, the larger fears of the judiciary being reduced as a tool for political engineering cannot be allowed to cloud our vision in discussions on the agenda of reforming judicial appointments or composition of benches. The process of reform requires a much deeper engagement with all stakeholders, including women, in a rational, participatory, transparent and inclusive manner, as opposed to coming up with short-term, knee-jerk, reactionary solutions, such as the seniority argument.
The larger fears of the judiciary being reduced as a tool for political engineering cannot be allowed to cloud our vision in discussions on the agenda of reforming judicial appointments or composition of benches.
If political engineering using judicial means has been a dark truth, then the discrimination against women and other marginalised classes in the justice sector has been no less. It has enabled the homogenous class of one gender and one ethnicity to dominate the benches. The homogeneity leads to inherent biases in appointing their own type, thereby extending longevity to their class and gender in key roles.
This kind of judicial impartiality has been questioned the world over. In his text, The Politics of the Judiciary, Professor Griffith says of the English judiciary, “These judges have by their education and training and the pursuit of their profession as barristers acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represents the public interest.”
Some scholars argue that the presence of diverse views can actually play a role in offsetting the partiality inherent in homogeneity and play a major role in introducing judicial neutrality and impartiality into the justice system, such that diversity becomes a tool for ensuring impartiality as opposed to a factor that erodes impartiality.
It is not enough to speak of reforms without speaking of diversity and inclusion. In fact, you cannot have one without the other. You cannot achieve freedom from interventions for political gains without addressing the structural barriers that hinder the advancement of diverse sections of the society in leadership roles and positions. Any arguments to reduce the ability of interference for political outcomes must also include the argument for fair representation. Otherwise, such arguments stand exposed as means for an internal power struggle and desire for the Bar to dominate the Bench — to get people appointed than reform the system to make inclusion possible.
Any proposed solutions should pass this test and provide genuine means to ensure inclusion. It is against this benchmark that we must question the seniority argument that is often advanced by the Bar to curtail the arbitrary powers of the chief without any thoughts on inclusion and diversity.
Any proposed solutions should pass this test and provide genuine means to ensure inclusion. It is against this benchmark that we must question the seniority argument that is often advanced by the Bar to curtail the arbitrary powers of the chief without any thoughts on inclusion and diversity.
As per the Bar’s own admission, the seniority argument was advanced as an interim demand — till a criterion for appointments was made. They are of the view that as an immediate step to curb arbitrary powers, the appointment should be based on seniority to avoid favouritism. However, they fail to acknowledge that once such a ‘right’ is entrenched in the system, it would become difficult to reverse it.
They also fail to understand that the principle of seniority in the appointment of judges is jeopardizing women’s representation on the Bench. This is because of the historical cyclical patterns of discrimination and discouragement that have kept women from active legal practice over the years, impacting their seniority in the profession. In addition to women, such technicalities also impact minorities and are no means to guarantee provincial or ethnic representation either when for instance the line of seniority favours a certain class and gender from a certain province or ethnicity successively. In such scenarios, there will be no means to appoint the one that brings diversity to the Bench as you would be tied to the mechanical system of appointing the one who is most senior. In this way, the only thing seniority would perpetuate would be the homogeneity of class and gender. ‘Seniority’ also does nothing to address the other core issues, that of composition of Benches and fixation of cases so if curbing political engineering really is the objective and not pushing women back, then insistence on seniority will not be of much help.
A genuine solution would be one that addresses all these contentious aspects of the current system, that enables arbitrary exercise of power and perpetuation of homogeneity on the Bench, as opposed to one that neither solves any of these issues but rather adds to the discrimination against women and other minorities in the justice sector. In this regard, several proposals for reform have been published by female lawyers but an effort to include their work and voices has not been made. If the Bar is genuinely not against women coming forward, it would do well to rethink its strategy by ensuring that voices of women are included in the on-going process of reform and would drop their demand to impose seniority seeing how inadequate that is as a response anyway and they too would much rather push for representation instead of seniority.
Differential attainment is a broad concept to encourage analysis and developing policies for people with marginalised traits gender, race, age, disability, ethnicity and religion.
An obvious case for change of policy.