The objectivity trap

In my previous column in these pages (‘The Seniority Trap’, August 7 ), I had argued that seniority was not a good criteria for appointments to the Supreme Court, and that there was ultimately no option but to leave this highly discretionary decision in the hands of people trusted by society to exercise that discretion in a reasonable manner.

Various people took issue with my arguments. The most substantive critique was put forward by Reema Omer who argued that the appointment issue revealed three interrelated problems: (1) the judge-dominated composition of the Judicial Commission (JC); (2) the opaque procedures employed by the JC; and (3) the absence of objective criteria in the JC’s evaluation of potential appointments to the SC.

Before responding, let me first note the difference between Ms Omer’s relatively modest position that the current appointment process can be improved and the absolutist position of the Pakistan Bar Council (PBC) that seniority must take precedence. The PBC’s position is flat out wrong. Ms Omer’s contentions, however, are entitled to more sustained engagement.

So far as the composition of the JC is concerned, it needs to be recalled that the current constitutionally mandated process has two distinct steps: nomination by the JC and then confirmation by the Parliamentary Committee. In 2011, the Supreme Court held in Munir Bhatti’s case that the Parliamentary Committee could not reject the JC’s determination as to the technical competence of a nominee but could, at best, make observations regarding other aspects. However, even those observations were declared subject to judicial review.

My point is that the constitution already provides for a two-tier process in which lay persons (ie members of parliament) examine individual nominees and express their views. Expanding the JC to include lay persons thus not only runs counter to the constitution but further reduces the importance of the Parliamentary Committee.

Certain commentators think that the Munir Bhatti decision went overboard in reducing the role of the Parliamentary Committee. I now tend to agree. However, the solution to an ineffective Parliamentary Committee is for the Supreme Court to revisit Munir Bhatti, not for the Parliamentary Commission to be made even more redundant via an expanded JC.

Regarding her second point, Ms Omer called for interviews and “Self-assessment against prescribed criteria.” I have reviewed the form used in South Africa for such assessment and would note that in Pakistan such information gathering is done via a preliminary vetting process carried out by the agencies. That preliminary vetting could be expanded to include questions of the sort used in South Africa. Furthermore, the Parliamentary Committee already carries out interviews (at least for high court nominees).

Some people go beyond such initial assessment to suggest that high court judges should be continuously graded and assessed by others. To that extent, I vehemently disagree. High Court judges should not be subject to any further administrative control by third parties, even by their chief justices. We already have a problem in that disfavoured judges get arbitrarily exiled to circuit benches. Any expansion of those administrative powers would militate against the independence of the judiciary.

Nonetheless, JC procedures can certainly be improved. For example, the current rule that only the CJP gets to nominate an individual for a Supreme Court slot should be modified so that any individual can be considered so long as a certain minimum number of JC members agree. A minimum support level would prevent frivolous nominations while also ensuring that any arbitrary disapproval by the CJP does not prevent worthy candidates from being considered.

The JC should also record reasons for its decisions (as suggested by Ms Omer). I understand the reluctance to record decisions may, in part, be caused by a reluctance to embarrass nominees. However, the potential for such embarrassment has to be balanced against the public interest in knowing that the JC is exercising its powers in a reasonable manner. In the absence of recorded reasons, people will be entitled to assume the worst. The potential for embarrassment may also be overstated. Recently, the reasons which prevailed with the JC for superseding certain judges of the SHC were made public and the heavens have not fallen as yet.

We come finally to the demand for “objective criteria.” Ms Omer refers in this regard to “racial, gender diversity” as well as “technical expertise, potential, symbolism, experience, integrity, adherence to constitutional values.”

To begin with, Pakistan is not South Africa and we do not share South Africa’s history of racism. I can think of few things more dangerous than introducing racial considerations into the Supreme Court’s appointment process. I concede that there are informal provincial quotas which have been largely respected but a province is not the same thing as “race”. Do we really want every appointment from Sindh to turn into a fight over Sindhi speakers vs Mohajirs? Should nominees from Punjab be graded on the basis of their biradari affiliations? I sincerely hope not.

I certainly agree that gender diversity should be a consideration, but subject to the caveat that greater weight should be placed on this issue at the high court level than for Supreme Court appointments. As noted earlier, there are 145 High Court slots which need to be filled (primarily) from the ranks of practicing lawyers as compared to 17 Supreme Court slots (which till date have been filled only from the ranks of high court judges). High court appointments also have a margin for error in that people can be appointed as additional judges for one or two years prior to their confirmation. There is no such margin when it comes to the Supreme Court. Furthermore, women often are not considered for high court appointments due to a lack of exposure. But after appointment at the high court level, exposure is no longer an issue. All that remains is the issue of competence. Again, this does not mean gender diversity has no role to play at the Supreme Court level; just a lesser role.

Ms Omer concedes her remaining criteria are vague but argues their adoption would nonetheless make the JC more objective and transparent. I disagree.

My problem here is not with the identification of desired qualities (Pakistan already has a Code of Judicial Conduct which states the desirable qualities of a judge in florid detail) but the assumption that one can make “objective” statements in relation to those qualities. Frank Zappa once said that writing about music is like dancing about architecture, his point being that certain thoughts are not easily reduced to words. So far as I can see, assessment of judicial merit suffers from a related problem: like beauty, it lies in the eye of the beholder. Or to apply Justice Potter Stewart’s dictum, “I know it when I see it.”

This issue is not unique to the assessment of judicial merit. Every year the Booker Prize jury picks a winner from a short list of books and issues a florid press release. Sometimes the choice is greeted with rapturous praise and sometimes with brickbats. But nobody says the Booker Prize should be awarded on the basis of ‘objective’ criteria.

Finally, to the extent objective criteria can be identified, Goodhart’s Law teaches us that when a measure becomes a target, it ceases to be a good measure. This maxim is often illustrated with reference to an apocryphal nail factory. When bonuses are given on the basis of the number of nails produced, the factory makes tons of tiny nails. When the standard is changed to the weight of nails made, the factory switches to producing giant heavy nails.

In the specific context of high court judges, this applies to the idea that disposal rate matters. What we see as a consequence (in some cases) is a plethora of orders aimed at getting rid of a pending matter rather than finally disposing of them through a more lengthy, more time-consuming reasoned judgment.

To conclude, there is no doubt the current appointment process for Supreme Court judges can be improved. At the same time, given the landmark nomination of Justice Ayesha Malik, the current process seems to be doing reasonably well. We should be careful not to throw the baby out with the bathwater in pursuit of some misguided quest for objectivity.

The writer is an advocate of the Supreme Court of Pakistan.Twitter: @laalshah