Friday December 01, 2023

Fixing judicial appointments

August 18, 2022

The last meeting of the Judicial Commission of Pakistan on July 28, 2022 ended badly. None of the five nominees proposed by the chief justice of Pakistan for appointment to the Supreme Court was confirmed.

Matters got worse when a post-meeting debate started over whether the five nominees had been rejected or whether their consideration had been deferred. The CJP tried to resolve this dispute by releasing the audio recording of the JCP meeting. That step only attracted further criticism (in part because the recording revealed that some members of the JCP had grave doubts regarding the integrity of certain nominees). All in all, an unfortunate and depressing spectacle.

What then is the way forward? Should the CJP give up his position that seniority is not the appropriate standard? Or should the ‘rebels’ temporarily relent for the sake of the system while a consensus formula is evolved?

In my view, both arguments are flawed because it is not necessary for the JCP to have a ‘formula’ for appointments. Instead, I propose to let every member of the JCP vote as they will. Let those who believe in seniority vote on the basis of seniority. Let those who believe in merit trumping seniority argue the merits of their chosen candidate. Let a thousand formulas bloom.

The actual problem with the current JCP setup is not the formula used to decide who becomes a Supreme Court judge (or the lack of one). Instead, the problem with the current setup is that only nominees proposed by the CJP get to be considered. As a consequence, if the CJP does not approve of any one candidate, that individual has no chance of being appointed. It is this formula (or more accurately, rule) which needs to change.

Defenders of the status quo argue that this system has worked for the past twelve years and that an alternate system which allows all members of the JCP to submit nominations would be unmanageable. Both points are invalid.

*Chief Justice Umar Ata Bandial is a good man and a good judge. I have known him for decades and I have no doubts as to his competence or integrity. At the same time, it is time to retire the sentiment that the chief justice of Pakistan is the ‘pater familias’ of the judiciary*. The chief justice of Pakistan will always be the first among equals. But there is no need to burden him with exclusive responsibility for certain decisions, particularly when there are better (and more democratic) options available. More importantly, this particular exclusive power has now become controversial to the extent that it affects the legitimacy of the entire judiciary.

So, how would an alternate system work?

Before I elaborate, let me first note a preliminary point. The seats on the Supreme Court have been normally understood as loosely corresponding to geographical quotas. Thus, when a judge from Balochistan retires, the assumption is that their seat will be filled by another judge from Balochistan. This convention needs to be updated to include judges from Islamabad (particularly given the inexcusable refusal to consider Chief Justice Athar Minallah). However, subject to that amendment, it provides a good working basis for nominations.

Here’s the proposal: if each of the JCP members has the right to nominate one person for each vacancy, there will be a maximum of nine candidates (though most likely less). Now ask all members of the JCP to vote yea or nay on each of the candidates, starting with the candidate who has the most nominations. The first candidate to get a majority of the JCP goes through to the next stage of the appointment process (review by the Parliamentary Committee). If no candidate gets a majority in the first round of votes, reduce the pool to those with the maximum number of votes and have a runoff. Now repeat the process for all available vacancies.

The benefit of this approach is that it avoids the insoluble question of what makes a good judge. As already argued by me in an earlier column, there is no formula which allows one to predict who deserves to be a judge. Sometimes great lawyers make bad judges. Sometimes judges bloom when they reach the Supreme Court. The one thing I can say with certainty is that seniority is a terrible basis to determine who gets elevated to the Supreme Court. Yes, seniority is a somewhat ‘objective’ standard. But it makes no more sense to appoint Supreme Court judges on the basis of their seniority than it does to appoint them on the basis of their height or weight (which are also objective but irrelevant standards).

By comparison, it needs to be recalled that six of the nine members of the JCP are either serving or former Supreme Court judges. The remaining three constitute the law minister, the attorney general and a senior advocate representing the Pakistan Bar Council. They are all individuals chosen for their integrity and fidelity to the law. If JCP members can be entrusted with the responsibility of (effectively) appointing judges, it makes no sense to say that they cannot be trusted with the power to nominate candidates.

In the words of Attorney General Ashtar Ausaf Ali, each of the JCP members is there as a fiduciary holding powers granted to them by the constitution as a “sacred trust”. Each of the members brings years of experience in the law to the table. Stop trying to straitjacket their decisions. Just let them vote.

*The main difference between my proposed solution and the current JCP setup is that the CJP will no longer have effective veto power. That is no loss. Yes, the CJP is wise and venerable. But so too are the other members of the JCP*.

The idea that there is some mystical formula which will result in the infallible selection of worthy Supreme Court judges is a fallacy. It is time to retire the myth and put our faith where the constitution places it: in the combined wisdom of all the members of the Judicial Commission of Pakistan.

The writer is a lawyer of the Supreme Court. The views expressed in this column do not represent the views of his firm.

Twitter: @laalshah