The elephant in the room

Published January 13, 2022
The writer is a lawyer based in Karachi.
The writer is a lawyer based in Karachi.

JUSTICE Ayesha Malik’s nomination by the Judicial Commission has been received with much appreciation and fanfare. Although she has an indomitable presence and will certainly be a valuable addition to the Supreme Court, unfortunately, her nomination was somewhat sullied by controversy regarding the criteria for her appointment to the Supreme Court.

In regard to this, I must say, I have found the debate to be extremely interesting.

On the one hand, there are those who have dug in their heels and seek to rely on the seniority principle for purposes of making appointments till such time an objective criteria is evolved. They assert that the presence of unregulated discretion in the appointment process is subject to manipulation, and hence, the same could be used to penalise independent-minded judges and promote those who may be willing to toe a specific line. It is also argued, amongst other things, that there is a long-standing practice of following the seniority principle.

What are the baseline benchmarks and standards in the JCP’s overall decision-making methods?

On the other hand, there are those who claim that the seniority principle for purposes of appointments in the Supreme Court has no basis in law, and as such, the Judicial Commission is fully entitled to appoint a judge to the Supreme Court in consideration of other factors. They also subscribe to the view that an objective criteria should be determined and implemented in the long run, albeit such a criteria should only be one small part of a larger reform agenda.

Interestingly, both sides agree that the seniority principle, for all the talk around it, is not a viable criterion for appointments in the long term. They also agree on the fact that an objective criteria ought to be evolved at some point to facilitate more transparent appointments to the Supreme Court.

The bone of contention, however, seems to arise as to what should happen in the interim period. Many in the bar propose seniority as the interim measure to be followed till an objective criteria is evolved, whereas the alternate side asserts that the Judicial Commission does not need to follow the seniority principle, nor should it, and in fact, it is perfectly empowered to make appointments to the Supreme Court on the same basis as was done previously.

Both positions, however, miss the goal post by miles. Firstly, it can hardly be argued that the seniority principle, even in the interim, is a pragmatic barometer to determine who would be most appropriate to be appointed to the Supreme Court. Such principles reward the quantity of time spent in a particular institution and not its quality. Furthermore, it may encourage mediocrity within the ranks, with judges less motivated to excel than would otherwise be the case had their performances been subject to an objective analysis.

It is also true that allowing the Judicial Commis­sion to nominate appointments in the interim in its own absolute discretion, with no option but to blindly trust the wisdom behind whatever decisions are ultimately made, does not make much sense. Unbridled discretion in any institution, be it the judiciary, is always more likely to result in controversial appointments that raise eyebrows on account of a perceived lack of transparency.

Amusingly, in the heated debate that ensues between both sides, both appear more concerned with what ought to happen as opposed to what is already happening. That is, rather than quibbling over what the criteria should be in the future, or what interim criteria should be followed, would it not have been better if both sides had sought for disclosure of the mechanisms and criteria that were undoubtedly already being used in the case of J. Ayesha Malik, as well as those prior to her?

After all, with the plurality of opinions that exist in the Judicial Commission, it is without doubt that certain baseline benchmarks, yardsticks and standards must currently figure in the overall decision-making methods of the body. But what are they? Are the members of the Judicial Commission rendering their votes based on personal and individualised standards or a collective one agreed by all? Are such criteria a mix of seniority cum fitness, fitness alone, or pure competence? Is the judge’s conduct in court, demeanour and reputation in the public, as well as knowledge of the law, all considered in equal weight? And are their personal lives relevant for decisions as to appointments, or their political views, for that matter?

These are the questions, amongst others, to which no answers are unfortunately forthcoming, and it is this aspect that is worrying. Even more so as such non-disclosure is the root cause of the present-day debate which refuses to subside and the cause of a major rift between the bar and the bench as well as within the bar itself.

Keeping this in mind, as such, it appears that the most immediate of issues to be addressed is not what the objective criteria ought to be, but rather the non-disclosure of the individual or collective criteria which is currently being used by the commission and its members. Such non-disclosure creates unnecessary controversy which takes away from the merits of the appointments, and as such, needs to be remedied at the earliest.

In fact, even if the Judicial Commission as an institution has not evolved any uniform criteria of its own — which it ought to have by now — in the name of transparency and openness, what is stopping its respectable members from disclosing their personalised and individual benchmarks for nominating a candidate to the Supreme Court? After all, such a step can only bolster the credibility of the institution, as opposed to landing it in further controversy.

The writer is a lawyer based in Karachi.

Twitter: @basilnabi

Published in Dawn, January 13th, 2022



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