IT is said about Billings Learned Hand that he was one of the finest legal minds not to have sat on the supreme court of the United States. Similarly, in Pakistan, many otherwise brilliant legal minds miss out on becoming a judge of the high courts, or of the Supreme Court, even when they may rightfully be said to belong there.
Part of it lies in the way we elevate judges. To be appointed as a judge of the superior courts in Pakistan it is a prerequisite that the chief justice of a high court or the Supreme Court knows you, has taken a liking to you, or has been compelled, or at least encouraged, to take a liking to you. Likings, naturally, are developed for a range of reasons, not necessarily on the basis of capabilities, legal acumen and integrity.
It is only after the respective chief justices have proposed a candidate that the Judicial Commission, under Article 175A of the Constitution, then deliberates over and “nominates” a candidate to the parliamentary committee.
This single method has created a bottleneck at the entrance to the corridors of the superior courts, which is problematic, since you not only miss 100 per cent of the shots you don’t take, you also miss 100pc of the shots when you are not even allowed entry into the playing field.
We could be blocking out great jurists.
The chief justice of a superior court, is but one individual, constrained by his social circle, worldview and personal opinions. As a result, perhaps inadvertently, the chief justice may, at times, not even consider individuals who are otherwise excellent candidates. And if the chief justice does not consider a candidate, irrespective of the suitability of that candidate, then there is no way that their name gets put forward before the Judicial Commission. The appointment, in short, can never happen, unless there is an initial green light from the chief justice.
Second, at times allegations are raised about other institutions’ interference in the workings of the Superior Courts. The worry is that those institutions may influence the selection of a judge solely for the purposes of safeguarding and propagating that institution’s interests. Potentially, if such an influence is hypothetically possible, then it is easier to exert on one individual. Diffusing this power can work as a buffer.
Therefore, it is of paramount interest for the future of our legal profession, that applications are solicited whenever a vacancy arises on the bench in the superior courts. The application process does not necessarily have to oust the nominations by the chief justice, but can operate in tandem, increasing the number of candidates to be considered. It will further be fruitful if a separate body is constituted, a committee of sorts, for the purpose of vetting the applications, and shortlisting candidates, to be put forward to the Judicial Commission, which may also conduct interviews. The said committee can include individuals from both within, and outside, the legal profession. This division of roles would not only bring diversity in vision, but would also enhance transparency and accountability, through dispersal of power.
Soliciting applications for appointments to the judiciary is a tried and tested method in other common law jurisdictions. As the White Paper published by distinguished colleagues at the bar, suggests, the application process for elevation to the bench is followed, amongst others, in the UK and South Africa.
The current proposal does not even require any amendment in the Constitution, but only a change in the relevant rules promulgated by the Judicial Commission of Pakistan. In addition to inviting applications, instead of vesting the power in one individual, other justices on the bench may also be allowed to propose the names of potential candidates.
Culturally, we have been made to think that one ought not to have an ambition to be a judge as one should focus solely on being a better lawyer and elevation may be a by-product. But why should this public office be closed off to individuals who may think themselves to have the requisite skill, spine and grit to fulfil this role? Allowing committed, ambitious and motivated people to apply for positions on the bench of the superior courts will only help in increasing the pool from which a more suitable and deserving candidate emerges. And what could be the harm? If they are not a suitable candidate then a transparent and competitive selection process will sift them out.
Many of the underlying issues in our society boil down to access. Access to opportunities and positions of power are jealously guarded, made available only to a select few. Therefore, the barriers blocking access to the superior courts have to be removed so that individuals can at least take that shot at being a judge. We could be missing out on great jurists by blocking them out.
The writers are lawyers based in Islamabad.
Published in Dawn, February 6th, 2022
