Judges' appointments: Seniority vs merit

The credentials, legal acumen, and caliber should be made the basis for appointments.
Published September 5, 2021

It goes without saying that “A judge is known by the judgments he gives” or “Judges speak through their judgments”. The role of a judge is to serve the community in the pivotal role of administering justice according to law. It is often said that a Judge is supposed to wear all laws of country on sleeves of his robes. In the words of Joseph C. Hutcheson Jr. “In my youth, scornful way, I recognised four kinds of judgments; first the cogitative, of and by reflection and logomancy; second, aleatory, of and by the dice; third, intuitive, of and by feeling or “hunching;” and fourth, asinine, of and by an ass; and in that same youthful, scornful way I regarded the last three as only variants of each other, the results of processes all alien to good judges”.

Judges play a pivotal role in our society. The role of a Judge is to apply the law, the obligations to improve the law, and the obligations to protect the law. In the case titled as Advocate Iftikhar Ahmed Bashir Versus Federation of Pakistan bearing Writ Petition No 3915/2020 vide Order dated 19th December 2020 a Single Bench of the Islamabad High Court while throwing light upon the appointments of Judges was pleased to hold that “Judges are impartial arbiters of disputes. They guard constitutionally guaranteed rights and uphold the supremacy of the Constitution and rule of law. A person appointed as a Judge ought to be as well qualified as possible. It is of utmost importance to appoint qualified, professional and independent minded persons as a judge because of the significant impact of the judicial branch of the State on the lives of the citizens and the security, prosperity and well being of a nation. It is the duty of the Judges and the courts to protect he liberties of the people and shield them from unlawful and unwarranted intrusion from the State and its agents. Without independent, competent and upright judges there can neither be justice nor freedom".

In the case titled as Justice Qazi Faez Isa Versus The President of Pakistan & others reported as PLD 2021 SC 1 a 10 Member Larger Bench of the Supreme Court of Pakistan while dilating upon the role of Judges was pleased to hold that “Judges exercise pre-eminent authority under the law. They adjudicate disputes between the litigants, hold parties appearing before them accountable and impose liabilities and grant relief to such parties. With their authority comes an even greater responsibility to decide cases fairly, independently and in accordance with law”.

Judges speak through their judgments

A judge is known by the judgments he gives. Judges speak through their judgment i.e. through their pens. The credibility, integrity, competence of a judge can be determined on the basis of the judgments which he or she has delivered/rendered. Rather than issuing directions or by giving statements the legal acumen of a judge can be determined on the basis of the judgments which he or she gives. It is often said that judges should only speak through their pens i.e. through the judgments rather than by way of observations or through unnecessary statements in Court. In the case titled as Masud Ahmed alias Maqsood Ahmed Versus The State reported as PLD 1973 Lahore 824 the Chief Justice of the Lahore High Court Mr. Justice (r) Sardar Muhammad Iqbal was pleased to hold that “Judges should speak only through their (written) orders and judgments”.

The competence and caliber of a judge can be determined/judged on the basis of what he writes, how he writes, does he write with proper application of mind, has he properly applied the law to the facts of the case, his judgments should be well-reasoned, they must have patience, he must be cool, calm and composed, he must be humble, patient, polite, soft spoken he must possess all the attributes of being called as “By every inch a judge”. While hearing the case of Justice Shaukat Aziz Siddiqui against the opinion of the Supreme Judicial Council (SJC) as well as the 11th October 2018 notification under which he was removed Mr. Justice Umar Ata Bandial went on to observe “The strength of the Judge is always his judgment and the clarity of thought while sticking to the already set high principles. Judges should be polite even in their judgment writings. Judges enjoy the right to write judgments”.

Mr. Justice Umar Ata Bandial as the Chief Justice of the Lahore High Court as he then was in his address titled as “Judges Serve The Nation Through Judgments” at the Lahore High Court, Lahore dated 28th March 2014 said “The duty of Judges is to serve the nation through judgments. Balanced judgments check cruelty and barbarism as a good decision can create peace and harmony in region and blocks bloodshed. The greatest virtue of an adjudicator was contentment and uprightness that led him to a just and quick decision”.

In the case titled as Mian Irfan Bashir Versus The Deputy Commissioner (D.C), Lahore etc reported as PLD 2021 SC 571 Mr. Justice Syed Mansoor Ali Shah was pleased to hold that “A judge is to remain within the confines of the dispute brought before him and decide the matter by remaining within the confines of the law and the Constitution. The role of a constitutional judge is different from that of a king, who is free to exert power and pass orders of his choice over subjects. After taking oath to preserve, protect and defend the Constitution, a constitutional judge cannot be forgetful of the fact that he himself, is first and foremost subject to the Constitution and the law. When judges uncontrollably tread the path of judicial overreach, they lower the public image of the judiciary and weaken the public trust reposed in the judicial institution. In doing so they violate their oath and turn a blind eye to their constitutional role”.

Judges are supposed to know the laws on the sleeves of their robes

Judges must know the laws of the land on the sleeves of their robes. It is an old age maxim of equity that “Ignorantia Juris Non Excusat” i.e. Ignorance of law is no excuse as the law is knowable and it is presumed that everybody should know the law”. In the case titled as Government of K.P.K. through Secretary Home & Tribal Affairs Department Peshawar and others Versus Mehmood Khan reported as 2017 SCMR 2044 Mr. Justice (r) Dost Muhammad Khan was pleased to hold that “The parties to a case are even not under obligation to hire the services of lawyers for pleading their cases because the primary duty to do justice and to apply the correct law to the facts of the case is the exclusive duty of the judges. It is not the obligatory duty of the litigant to point out to the court the correct law in a case; rather it’s the duty of the judges to apply the appropriate and applicable law”.

Performance of a judge

Mr. Justice Mian Gul Hassan Aurangzeb while presiding over the certificate awarding ceremony as chief guest at the conclusion of a one-week course on 23rd January 2016 on “Criminal Trial and Appreciation of Evidence” for Civil Judges cum-Magistrates said “A judge both in his private and professional life should behave in a manner as to preserve the dignity of the office. The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Judges are the custodians of the rule of law and they should always behave in such a manner as people idealise them. The conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. As judgeship is a sacred trust of Allah, therefore, we must understand and realise that there is no room for error. The margin for error in minimum. Our decisions, our judgments, must speak and become our recognition as symbol of justice in the society”.

Likewise, his Lordship Mr. Justice Jawaad Hassan of the Lahore High Court has also shed some light on the performance of a Judge. In the words of his Lordship “We live in a constantly changing world. We must grasp new realities and learn the desired skills and new approaches to laws to become effective individuals and judicial officers. In this globalised world, we have to grapple with new issues and questions of law. In this age of technology, we have to deal with many horrendous issues such as money laundering, terrorist-financing, intellectual property rights and such other matters both national and global in nature. Therefore, we must have to be agile learners, adapt and learn new laws, among other things, quickly in a new fast-changing environment.”

“Recognising the nature of emerging changes and challenges is key to examining the current context in which we live. The major changes to be expected in our future should inform how we think of education training today because it is a question of preparing our generations for the future and saving our future. In this context, a key concern is respect for new skills, equipping ourselves with new tools of trade and aligning those with effective delivery of justice to the people."

“We have to learn an enormous amount to become good judges. There are various ways to broaden the perspective and vision. Trainings always stand out to broaden the vision. These trainings not only provide us the opportunity to learn from one another, but also widen the vision for research but also bring improvements the quality of judgments."

The upshot of the above discussion is that more than the seniority it should be the merit which should be looked at and should be given preference in appointing Judges to the Superior Courts. The credentials, legal acumen, and caliber should be made the basis for appointments.