Saturday March 02, 2024

Bar politics

November 09, 2021

Politics with a public purpose is a sacred job. Bar politics is important as a strong justice system is the backbone of any society. However, it appears that on the pretext of independence of the judiciary and the welfare of the bar, bar politics is being used largely for monopoly in the legal profession and leverage. It generates huge profits for some, even if it means devastation for others and weakens the bar.

The recent round of bar politics begins with the elevation of Justice Mohammad Ali Mazhar to the SC and the nomination of Justice Ayesha A. Malik. Despite resistance by the bar councils, Justice Mohammad Ali Mazhar was elevated while the Judicial Commission could not agree on the elevation of Justice Ayesha Malik. Notwithstanding protests by the bar councils, 41 junior judges have been elevated to the SC bypassing more senior judges in the past. This raises a question: why have bar councils changed strategy occasionally? For example, at one point certain political groups support the elevation of junior judges, and at another time, they oppose such elevations. Is this shift in stances with (or without) a purpose? It's all about politics.

Those who opposed the nomination of junior judges to the SC argue that only the most senior judge of a high court could be elevated to the SC. They maintain that disregard of the seniority principle is against the constitution. This argument needs examination. The relevant provisions for the elevation and appointment of judges to the SC are as follows:

Article 177 states that " [...] a person shall not be appointed a judge of the Supreme Court unless he is a citizen of Pakistan and (a) has for a period of, or for periods aggregating, not less than five years been a judge of a high court… or (b) has for a period of, or for periods aggregating not less than fifteen years been an advocate of a high court…".

Article 175A provides that there shall be a Judicial Commission of Pakistan…for the appointment of judges of the Supreme Court […]. For the appointment of judges of the Supreme Court, the Commission shall consist of [the] chief justice of Pakistan; four most senior judges of the Supreme Court; a former chief justice or a former judge member of the Supreme Court of Pakistan to be nominated by the chief justice of Pakistan; federal minister for law and justice; attorney-general for Pakistan; and a senior advocate of the Supreme Court nominated by the Pakistan Bar Council […].

Articles 175A and 177 do not mention the seniority principle. Thus, an argument in favour of the seniority principle fails on the touchstone of the constitution itself. The most famous case on the subject is the Al Jehad case (PLD 1996 SC 324), which held, inter-alia, that the most senior judge of a high court is entitled to be appointed as chief justice except where concrete reasons are recorded by the executive. Thus, this case applies only to the appointment of a chief justice of a respective court. It does not appear to apply to the elevation of judges to the SC. In any case, the seniority principle is just a mechanism to ensure judicial independence. It is not an absolute rule. Any principle and law can be discussed for defining more objective criteria for judicial appointments.

So, one may ask, why do certain bar leaders protest elevations with reference to seniority? Why have they not sought a constitutional amendment to secure the seniority principle and/or an objective criterion for judicial appointments in seventy-five years to ensure judicial independence? It's politics.

To achieve subjective political objectives, the slogan of ‘welfare of the bar’ is employed without defining and explaining the contours of welfare. Some members are attracted to such a jingle without examining its hollowness and demanding the execution of such slogans for the welfare of the majority.

Some of those who hold political office in the bar manage to capture the legal business. Political influence is sometimes used by some elements in the bar to undermine the independence of judges. The cases of junior and professional lawyers, on the other hand, are frequently adjourned or put to the cold storage for a later date. Most lawyers are victims of bar politics, even as they participate in it. Monopolies and cartels are suffocating young and professional lawyers.

Thus, the members of the legal profession need to reflect on the mechanism of bar politics – its processes, strategies, aims, and outcomes. It would help to redefine the objects of bar politics. These could include the skills development and professional mentoring of young lawyers; accountability and up-gradation of the legal profession; regulation of bar politics, appreciation and promotion of judicial independence; and inclusion, equality, and a fair opportunity. It will enhance the prestige of the bar and public confidence in our justice system.

The bar is the most democratic institution in the country. It has a huge potential, which can be channeled for betterment in judicature. Given the independence, glorious past, and capacity, one expects greater responsibility from the bar. If the bar produced great leaders like Muhammad Ali Jinnah and Muhammad Iqbal in the past, it can produce brilliant lawyers in future to serve this nation.

The writer is an advocate of the Supreme Court.