Judicial appointments are the starting point of realizing the State’s promise of access to, and delivery of, justice. If nothing else, inner workings of the Judicial Commission (the “Commission”) that recently surfaced fueled misgivings: is the fish about to rot from the head?
Despite its cheque red history, the judiciary remains the pivot upon which the administration of justice rests. Where administration is effective, justice is the necessary corollary. Sadly, our society seems reconciled with a dysfunctional subordinate judiciary. Such despondency, however, cannot permeate expectations from the superior courts. If constitutional guarantees of life, liberty, education or economic security (whatever the priority) must rest on assured footing, it’s time to rethink administration of justice – head down.
The 18th Constitutional Amendment ended dominant role of the Chief Justices (CJs) in inducting judges by entrusting it to the Commission, a collegium of seven members, majority of which were non-sitting judges. But, the then PPP government was browbeaten by the Iftikhar Chaudhry paradigm, first: to bring the 19th Constitutional Amendment, which secured a majority at the Commission for sitting judges, and second, when the Parliamentary Committee (the Committee) disagreed with the Commission’s nominations, the Supreme Court (SCP) rendered the Committee redundant. This feat was accomplished on the altar of ‘independence of judiciary’. Its real beneficiary, however, turned out to be the CJP, who re-emerged as the center point for securing judicial appointments. That legacy pervades.
Parliamentarians are gearing for a pushback. A bill to further amend the Constitution was introduced in the Senate in August 2022. It targets the Commission’s structure and the process of judicial appointments. Tellingly, it proposes: (a) reducing the Commission’s total membership with sitting judges retaining 4:3 majority; (b) an Initiation Committee with sitting judges having 3:2 majority to send nominations to the Commission after vacancies arise; and (c) empowering the Committee to assess ‘credentials, capability, moral and financial integrity’ of nominees recommended by the Commission.
The proposed constitutional amendment claims support of a nationwide consultative process. Whether the judiciary regroups to claim the rematch is an exciting proposition. But, it does nothing to address the cause of the impasse or discontent within (or with) the Commission’s working.
Thus, the case for precise criteria for administering appointments at the superior courts is ripe. Below are some points to consider.
Criteria: There ought to be different criteria of appointments at the SCP than that for High Court judges. For, among other reasons, there is an underpinning ‘federal’ character in SCP’s composition, which does not hold true for a High Court. Thus, rules are needed to specify appointments from each High Court on the basis of proportional representation at the SCP. More elaborate criteria including domicile, gender balance and the exact number of seats for each Province at the SCP must be specified. Mantras driven by ‘ethnicity’ or ‘best of the best’ will not suffice. The Islamabad High Court is unique in that it has judges from all Provinces. But, a judge elevated to the SCP from Islamabad High Court should be reckoned on the basis of his domicile, not Islamabad; for Islamabad domiciled judges at the court should also have one seat at the SCP.
Characteristics: Waxing lyrical about integrity, independence or ability is hubris. Each is a given and will have been demonstrated by the time the stage of nomination to the SCP reaches. It is mindboggling that these qualities are even at issue. If (quite disconcertingly) an issue, the individual should not even carry on at the High Court. The Supreme Judicial Council must come out of slumber. Must it perpetuate a travesty?
Direct appointments: There is no wisdom in not considering suitable candidates from the relevant Provincial Bar if dearth of suitable sitting High Court judges is claimed. This is not in keeping with the constitutional scheme. If no sitting judges at the High Courts are considered suitable (rather concerning), there is no dearth of qualified practitioners for a seat at the apex court. The coveted Roll of Senior Advocates may be a good starting point. The likes of the late Mr. Manzur Qadir may only be available for direct appointments.
Principle of Seniority: Seen in the above perspective: is the principle of ‘seniority’ rightly eclipsing the issue of appointments at the SCP? Afraid not! Seniority enhances probability that a judge has had occasion to deal with more and/or diverse cases but, how can ever mere length of service guarantee or measure suitability or excellence as compared to ‘brother judges’? Have we not witnessed seniority juggled over oath-taking in a matter of hours or day or two? Legitimizing expectation of a seat at the apex court solely on the touchstone of prior induction as a judge, without considering other more determinative credentials, is tantamount to institutionalizing the decadent sense of entitlement.
There are yet, at least three other critical concerns for effective administration of justice.
Code of conduct: The code of conduct is archaic. A more appropriate code of conduct for superior court judges’, drawing on universal standards, is needed. Sitting judges will only strengthen faith in the system if they were to disclose assets on an annual basis, and also identify professional engagements of near kin to ensure transparency and, to dismiss perception of bias and/or conflict of interest. Most importantly, retired justices of the SCP should not be searching for gainful employment within any government of semi-government body. Yes, there are laws that facilitate this practice but, these need to change. There is an uncanny element of lucrative promise in this aspect, therefore, judicial conduct must volunteer not to do so or at least provide that pension and other benefits of a retired SCP judge shall stand suspended for the duration such assignment is accepted.
Formation of Benches: The power to fix benches has the potential of not only breeding discontent among the general public; it can cause fissures within the court. Better not we have three permanent benches in all? Two of five justices each and one of seven, headed by the CJP. Bench II and III should be headed by the respective two most senior judges of the court. Smaller benches may obviously hear cases where a permanent bench is not available. Likewise, larger benches may be constituted where required. Cases should be fixed by way of a computer-based system, without human preference. Last, these benches should sit at Provincial registries as per a schedule notified in advance. Benches along the above lines will reduce the possibility of branding decisions of two or three-member benches ‘controversial’. It may also help streamline judicial precedent. The derisive perception of ‘like-minded’ judges is an affront to the court, as much it is to the collective conscience of the nation. More importantly, constitutional questions impacting the elected or political representation must be heard by the Full Court.
Fixed term of CJ’s office: Appointing CJP’s for a few days or weeks only serves to massage individual egos. No good has, and can, come out of such short-term pater familia! Regardless of date of superannuation, the CJP should have a fixed term: say, two years. Any policy or direction that CJP asks the apex court to consider, must follow the full court’s consideration to ensure ownership and effective implementation.
Good tidings: Recent efforts within the Commission for a more open and transparent engagement of all its members suggests that CJP (as its chair) will eventually relinquish individual hold over judicial appointments in favor of a more inclusive and structured discretion of the Commission. Make no mistake, the Commission needs to be empowered as an independent body. It is for its members to avoid the controversial acclaim of the Supreme Judicial Council. And, the Commission cannot develop into an exemplary body without due and adequate empowerment of the Committee. Together, the Commission and the Committee by supplementing each other – not contesting, will the State discharge its duty to appoint the right candidates to serve the Constitution without fear or favor.
Trickle down: Objective measure of responsibility and accountability must flow from the top. Reassuring indeed when sitting justices openly admit past failings of the apex court. But, it will be mere lip service if such recognition is not followed by remedial action. At the crossroads of unprecedented discontent and uncertainty, it only behooves esteemed envisaged character of the Judicature to set higher standards for the administration of justice – head down!
Will power heed reason? We shall see!
Syed Ahmad Hassan Shah is Advocate Supreme Court, based in Islamabad