In a letter, Justice Qazi Faez Isa (right) advised Chief Justice Umar Ata Bandial (left) not to bulldose the “due” process for appointment of more than one-third of the total number of judges in the apex court
In a letter, Justice Qazi Faez Isa (right) advised Chief Justice Umar Ata Bandial (left) not to bulldose the “due” process for appointment of more than one-third of the total number of judges in the apex court

In a scene from Yes, Minister, a brilliant British sitcom, a meeting of the cabinet secretaries deliberates upon the issue of “fair and equal” treatment of women in the British public service. The nine white upper- and upper-middle-class men agree with the principle of equal treatment of women emphatically, only to ruefully conclude that it would not work for each of their own departments.

Towards the end of the meeting, bureaucrat wizard Sir Humphrey Appleby remarks, “We must promote the best man for the job, regardless of their sex.”

It is not fair to compare this with the latest Judicial Commission of Pakistan (JCP) meeting. However, listening to the audio recording (put out by the Supreme Court itself), there are fleeting resemblances. An obvious one is the use of the word “gentleman” with great abundance: “We can all agree that the appointee should be a gentleman,” etc.

The JCP meeting starts with what one would expect in the wood-panelled, smoke-filled, hallowed halls of the Supreme Court. However, while the discussion that follows is impressive in its robustness while maintaining impeccable decorum and civility, the meeting spotlights the limits of abstract personalised decision-making — even when involving persons of the calibre and fortitude of the members of the JCP.

There is broad consensus, even among the Judicial Commission of Pakistan, that the present system of appointing judges is broken. There may be no easy answers but can there at least be guiding principles to begin to fix it?

The structural problems of judicial appointments in general, and those arising out of the JCP meeting in particular, have by now been articulated and debated in the national conversation and I don’t intend to reproduce them. The office of the Chief Justice is too powerful and the power and responsibility of the CJP to exclusively initiate nominations lays a heavier burden on the CJP than one which any individual can confidently and efficiently discharge.

The criticism is important and a recurring theme in the constitutional history of Pakistan and the region. During the Constituent Assembly debates in India, Dr B.R. Ambedkar, while commenting on the chief justice’s dominant role in “judges appointing judges”, said, “To allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the president or the government of the day.”

The second point of seniority versus merit has also been litigated forcefully, eloquently and decidedly without resolution in these pages and pages elsewhere. The JCP meeting repeatedly refers to competence, integrity and temperament as factors to be considered for appointments to the bench — all unexceptionable attributes, almost all subjective, except for integrity. One would presume integrity is an all-or-nothing, pass-or-fail quality. It is hard to imagine a person having sufficient integrity to be a judge of the High Court but not enough to be one of the Supreme Court.

The discussion on competence was refreshing, often specific and nuanced. Judicial competence is completely subjective, and no right answers can be found. However, incompetence is easier to spot and was emphatically done in the JCP meeting.

However, the principal conflict and tensions happened off the page: not on the discussion of those who were selected to be considered, but those who weren’t. No matter how nuanced and incisive an appraisal of a pool of candidates is conducted, it can’t consider those who are not in the pool. The primary method of someone making it to a list was to be a “gentleman known” to the Chief Justice or who the CJP can ask a friend about. In a country of 220 million and five high courts that is setting ourselves for spectacular failure.

The country club membership-based referral system or “I know a guy who knows a guy” means that only a limited number of candidates will be considered. No women were considered or even mentioned as possible candidates. His Lordship Justice Qazi Faez Isa pointed out the lack of knowledge of the other members about Balochistan judges. This is not a comment on the present members of the JCP but just one that the number and type of people that anyone can know is limited.

Another problem is that one can’t volunteer or apply to be considered for an appointment since that would be “ungentlemanly” conduct — it would seem too eager, too vulgar. Anyone who wants to be king is automatically disqualified from becoming one. In this view, the practice of law is still a “calling” rather than a profession.

The JCP has no woman member, an overwhelming number of members from Punjab and almost all members trained by decades of experience to look at the world in a particular view. Vehement disagreements within the JCP point to diverse views, yet, in some ways, the difference of opinion beyond personality clashes seems like a clubhouse quarrel.

The 18th Amendment attempted to dent the system of judges begetting judges by introducing the parliamentary committee, and trying for some semblance of parity between judges and non-judges in the appointment process. The Supreme Court coerced the parliament to pass the 19th Amendment to dilute the parliamentary committee’s oversight and then, through a court decision and JCP rules, practically restored the pre-18th Amendment position of judges (or more accurately, the Chief Justice) appointing judges.

There is broad consensus, including in the JCP meeting, that the present system of appointing judges is broken. Any system which, every few months, ignores His Lordship Justice Athar Minallah — one of the finest judges in the country — for appointment to the Supreme Court is broken beyond repair.

What should replace it has no linear and neat answers. However, there is one key guiding principle. The process needs to be democratised with more diversity in the decision-making body and more diversity in a larger pool of nominees (for example, in the recent JCP meeting, five nominees of the CJP were to be considered for five vacancies, as opposed to, say, 15 contenders).

There is discussion on framing of the rules of the JCP and this might be a band-aid solution to a deep wound. Ideally, the parliament should work towards a constitutional amendment which, at a minimum, restores the 18th Amendment position and works towards a more inclusive and wide-ranging consultation process, including — if possible — an opportunity for a hearing of the candidate.

The only chance for anyone who is not the Chief Justice to make up their minds about a future judge, ask questions and hope for answers is while someone is being considered for an appointment. That opportunity should be seized because, once the “gentleman” becomes “His Lordship”, the questions flow only one way. Judges are condemned to “fraternise” with other judges for practical reasons; however, any brief, fading opportunity to engage them in a public engagement with the rest of humanity should be pounced upon.

Lord Byron at the beginning of “Don Juan” addresses the so-called Lake poets, ridiculing them for their narrow-mindedness and insularity: 

“You—Gentlemen! by dint of long seclusion
From better company, have kept your own
At Keswick, and, through still continued fusion
Of one another’s minds, at last have grown To deem as a most logical conclusion,

That Poesy has wreaths for you alone:

There is a narrowness in such a notion,
Which makes me wish you’d change your lakes for ocean.”

The writer is a lawyer

Published in Dawn, EOS, August 21st, 2022

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