To appoint or not?

Published January 2, 2022
The writer is a Lahore-based lawyer.
The writer is a Lahore-based lawyer.

AS Pakistan approaches the prospect of appointing its first female judge to the Supreme Court, its lawyers are up in arms again.

After the Judicial Commission of Pakistan was tied in its last meeting in September (with one absentee), the chief justice of Pakistan has again proposed the name of Justice Ayesha A. Malik of the Lahore High Court for consideration in its next meeting on Jan 5. Justice Ayesha is the fourth most senior judge in the Lahore High Court.

In response, the vice chairman of the Pakistan Bar Council has written to all the bar councils and organisations in the country convening a meeting on Jan 3 to chalk out their “future course of action” to resist the appointment. Similarly, the Supreme Court Bar Association of Pakistan has passed a resolution calling on the current chief justice to refrain from appointing any judge at all since he will be retiring in a month and to leave the matter to the next chief justice of Pakistan.

Read: Justice for judges

The last time around, lawyers called for a protest outside the Supreme Court building on the day of the meeting and the rhetoric and resistance ramped up substantially. All indicators suggest that a repeat is in the offing. So, what is driving the resistance?

What is driving the resistance to Justice Ayesha’s appointment?

Ostensibly, the debate is not about Justice Ayesha’s appointment at all. They argue that appointments to the Supreme Court should be governed by the ‘seniority principle’ — ie only the senior-most judge in the respective high court should be appointed to the Supreme Court. According to them, until objective criteria are agreed upon for appointments the seniority principle eliminates subjective discretion and the prospect of appointments being tainted by the ‘picking and choosing’ of favoured judges.

So if you were to believe the bar organisations, Justice Ayesha just happens to be caught up in a debate about principle that is not specific to her. And yet, while there may be genuine well-meaning voices in this chorus, one cannot escape the sense that there is something deeper at play here. Something darker that bar leaders are only too happy to harness while couching their argument in pure constitutional principle.

What else explains the sharp rhetoric and the scale of protest surrounding this particular appointment? She is hardly the first judge to be considered for appointment in deviation from seniority. There are at least five such judges (all male) currently on the Supreme Court. The Pakistan Bar Council, whose nominee sits on the Judicial Commission of Pakistan, should disclose what position it took in each of these (and prior) cases in the past. It should also explain why it did not call for protests of such scale (if any at all) on these occasions.

The onus is on the bar leaders to explain the disingenuity surrounding the terms in which they have chosen to frame the debate. For example, in his letter the vice chairman of the PBC states that Justice Ayesha’s appointment was earlier “disapproved” by the Commission. This is patently untrue. The Commission was deadlocked with an equality of votes in favour of each position. To call that a disapproval is a deliberate mischaracterization — and the question asks itself: to what end?

Importantly, the PBC is not some ill-equipped outsider with no ability to be heard except with street protests. It nominates a member for a two-year period to the Commission. Therefore, it has an institutional opportunity to put forth its perspective as part of the debate and a seat at the table. One then struggles to understand the purpose behind organising mass protests and gathering in large numbers outside the venue of deliberations. The only explanation of such tactics seems to be to build pressure and intimidate those who do not share the same views: a willingness to win the debate by coercion if not persuasion.

The debate between seniority and merit has suggested that there are only two problems to fix in Pakistan’s judicial appointments system (favouritism and incompetence). Yet this is far from the truth. Pakistan’s judiciary has a third problem: homogeneity. The sooner one acknowledges it, the sooner it can be addressed.

The bar is well within its rights to seek improvements to the appointments process. Indeed, it must do so. However, it must explain why a process that was good enough to appoint all of the current Supreme Court is suddenly so flawed that street protests are required? Let the same standards apply to this appointment as to all those before this one.

But the bar is right about one thing: this is not about Justice Ayesha at all. It is about opportunity and how those who dominate opportunity in society are always able to deploy a neutral sounding principle at the right time that “just happens” to deny that opportunity to others — no matter how deserving.

The writer is a Lahore-based lawyer.

skhosa.rma@gmail.com

Published in Dawn, January 2nd, 2022

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