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Saturday October 23, 2021

Principles of appointment

September 24, 2021

Various views on the appointment of Supreme Court (SC) judges have been floating around lately. While adding to the controversy of whether the overriding principle of seniority should be the only criterion, a fundamental principle for appointments to a federal court has been overlooked.

Under Article 199 of the constitution, provincial high courts are responsible for the enforcement of fundamental rights. The SC, being essentially a federal court, has original jurisdiction to resolve disputes between any two governments – federal or provincial – under Article 184.

Tasked with the resolution of disputes between provinces and the federal government, the Supreme Court must have equal representation from all provinces. It is obvious that there would be strong and severe conflict of interest if any one province is heavily represented – to the exclusion or underrepresentation of any other province. The fair and just resolution of disputes between two provincial governments or a federal and a provincial government demands that the principle of equitable representation is strongly adhered to.

The charter of democracy (CoD) signed in May 2006 by all the major political parties (the same parties which later legislated the 18th Amendment) reiterated this principle when it endeavoured to establish a federal constitutional court on the basis of equality of four provinces, while leaving the existing Supreme Court only with appellate jurisdiction.

However, the federal constitutional court envisaged in the CoD could not be created under the 18th Amendment as the newly restored judges in 2009 wielded immense power and were opposed to it.

The constitution is crystal clear on the point that the SC has been invested with the jurisdiction of resolving disputes arising between all governments, and the enforcement of fundamental rights has been entrusted to provincial high courts.

The SC shares limited and ancillary power with high courts over the enforcement of fundamental rights only in cases of public importance under Article 184(3). Thus, jurisdiction over the enforcement of fundamental rights rests completely with provincial high courts. It is for this very purpose that the entire subordinate judiciary in all provinces is under the control of high courts and not the Supreme Court, guaranteed under Article 203 of the constitution.

Therefore, the basic principle of the appointment of judges to the Supreme Court must reflect this fundamental tenet of equality of representation. The other criteria of seniority, merit or gender should be considered within this overriding context to make the representation of provinces meaningful. Unfortunately, this underlying principle of federalism, sagaciously ingrained in the constitution, has been quietly done away with.

It is important to remember and highlight at every step that there are vital stakes of all the provinces in the composition of the Supreme Court. Since a federal court has original jurisdiction to resolve disputes between provinces and the federal government, the matter of equal representation cannot be overemphasised.

For example, in case of a dispute between two provinces, say Balochistan and Punjab, how can it be resolved, and seen to be judiciously resolved, if a majority of the judges are from Punjab? If Balochistan, Sindh and Khyber Pakhtunkhwa (KP) have meagre representation compared to Punjab in a federal dispute resolution mechanism, the SC’s decision in Punjab’s favour would definitely be viewed with suspicion by the provinces. The past and prevailing lopsided composition of this federal court has already had damaging effects on the federation. Any further weightage to one province in the composition of the SC will further erode the ethos of federalism in the country.

Currently, in the matter of appointment of SC judges, the cart is certainly being put before the horse. Before adhering to the basic federal principle of equality of representation of the provinces, merit and seniority is being considered while quietly side stepping the principle of the meaningful representation of provinces.

Also, Article 177 of the constitution says that those high court judges who have completed a minimum of five years of service or those advocates who have work experience of 15 years in the high court can be considered for the SC judge post. Why is this article not being invoked to make up for the underrepresentation of provinces and women?

At present, the composition of the judicial commission for appointment of Supreme Court Judges is such that the provinces do not have any representative in the commission. Even in the matter of appointment of high court judges, provinces have less influence than Islamabad. This lopsided, skewed and unconstitutional arrangement needs immediate correction.

Women’s representation in the superior courts should have happened decades ago with appointments in high courts as well as the Supreme Court. Had the current federal government been serious, it could have used the opportunity it had to appoint women judges in both provincial and Islamabad high courts. However, at this critical juncture, when the bar is struggling to establish the principle of seniority, not equal representation of provinces, the federal government has started the gender debate to oppose the Bar. This sudden exhibition of gender sensitivity is a ploy to deny equitable weightage to the minority provinces.

If one woman from each province was appointed as a SC judge, who would have opposed it? If, due to their meagre number, women judges cannot be promoted from provincial high courts, they can easily be appointed from amongst women advocates who have completed 15 years of practice in provincial high courts. As mentioned earlier, this provision exists in the constitution under Article 177.

Pakistan is a federation. The principle of the appointment of judges to the Supreme Court calls for equal and fair representation of provinces. Merit, seniority and gender must remain within this overarching context. Any other approach weakens the federation and further alienates the minority provinces. Had the constitution been followed this way, it wouldn’t have been possible to impose martial laws in the country – or announce death penalty for elected prime ministers.

The writer is a former advocate general of Sindh.

He tweets @zamirghumro.