AFTER the Supreme Court walked itself into a political storm with its interpretation of Article 63-A and later its ruling on the July 22 Punjab chief minister election, there was bound to be increased scrutiny of its other activities. It was, therefore, no surprise that the Judicial Commission of Pakistan’s meeting this week to discuss the elevation of five judges to the Supreme Court ended up inviting the attention that it did.
The meeting became controversial even before it took place, as lawyers, bar representatives and the senior puisne judge, Justice Qazi Faez Isa, objected to its timing because judges were on summer vacations. There were allegations that the scheduling of the meeting was an attempt to keep Justice Isa and the attorney general, who were both out of the country, away from the JCP proceedings. Both eventually joined via video link.
Embarrassingly for the top court, the JCP ended up opposing, by a majority of 5-4, four names proposed by Chief Justice Umar Bandial. The case of the fifth nominee, Peshawar High Court Chief Justice Rasheed Khan, was set aside for further consideration.
The division over the nominations was not unexpected: it reflects a long-running dispute over what criteria may be used to elevate judges.
Traditionally, the criterion had been the ‘principle of seniority’ — ie the senior-most judges were automatically considered first in line for elevation. However, the apex court has in recent years argued for a ‘merit-based’ order of promotion, arguing that seniority itself is not enough guarantee of a judge’s fitness for elevation.
While merit-based criteria are acceptable to many, others oppose rushing into the change because no objective standard has been set against which a judge’s qualification may be reviewed. The argument is that since it is solely the chief justice’s prerogative to make nominations, it can be difficult, in the absence of formal guidelines, to determine if a nominee is actually competent or if they have been named in keeping with personal preferences. Therefore, till such time that formal criteria are laid down, the chief justice has been urged to stick to the principle of seniority as it retains an element of objectivity.
The result of the JCP vote reinforced that long-running demand.
It is discouraging to see the superior judiciary seemingly divided at a time when Pakistan is in great social and political flux. It is important that the chief justice dispel the criticism he is facing by addressing its root causes.
As head of the Supreme Court, he must protect its image as an independent, neutral arbiter in matters of national concern — an image that increasingly seems at risk considering the fractures becoming apparent in its edifice and the attacks it is facing from without. He can begin by reviewing those decisions that have put his house in disorder: justice, after all, must begin at home.
Published in Dawn, July 30th, 2022