Insular and opaque

October 7, 2018

There are lessons to learn from Brett Kavanaugh’s appointment to make our own processes more accountable and inclusive

Insular and opaque

Even if you are not interested in who gets appointed as the next Justice to serve on Supreme Court of the United States (SCOTUS), it is worth doing a YouTube search for ‘US Supreme Court confirmation hearings’. The United States Senate Judiciary Committee holds confirmation hearings for all federal judges nominated by the President of the United States. After these hearings, the Senate as a whole (100 senators) votes to confirm or reject a nominee. In a country where almost all socially divisive issues (be it abortion, gun control, place of religion in state schools or the election of George W. Bush!) make it to the nation’s top court, seats on the nine-member SCOTUS assume enormous importance.

President Trump recently got to nominate a second Justice to SCOTUS -- Judge Brett E. Kavanaugh. Recognised as highly qualified at the time he was nominated, and yet viewed with suspicion by many over whether he would overrule many precedents celebrated by liberals, Kavanaugh was having a pretty smooth confirmation hearing. And then news broke of Dr Christine Blasey Ford’s allegations of sexual assault against Kavanaugh. Multiple other women have since then come forward and narrated their own experience of unwelcome sexual advances or improper conduct by Kavanaugh.

The next development, shocking to many outside the United States, was when amid mounting pressure to hear Dr Ford, the Senate Judiciary Committee invited her to give testimony. Nowhere else in the world would this have happened. This is not to say that the process of hearing from Dr Ford was perfect -- that did raise many question marks -- but there is something to be said for the symbolism in a woman being heard on live television as she testifies against a nominee for an important judicial office.

Attacks on Dr Ford’s narrative and person do not change the fact that her testimony before the Judiciary Committee was dignified, credible and highly persuasive. She is a profile in courage for taking on a powerful man and for speaking out about a deeply traumatising experience. When it was Judge Kavanaugh’s time to testify after Dr Ford, he was anything but calm; he basically fell apart as far as his temperament is concerned. This resulted in legitimate questions being raised about his fitness to serve as a SCOTUS Justice.

Why is it important that Kavanaugh should answer difficult questions? If his nomination is confirmed by the Senate, it will be a lifetime appointment that will make him one of nine individuals who have the final word on constitutional interpretation in the USA. Judges cannot be voted out of power -- at least not in most places -- so there is a very strong case to be made for the public representatives gauging the worldview of those aspiring to serve as judges.

Now, many in Pakistan may not put much stock in being interested in such developments across the world. But transparency and public participation in the process of judicial appointments is an issue where every citizen does have an opinion. Even if people claim not to have an opinion, if you make them aware of the stakes involved they will come up with a position. And, of course, it matters a great deal who gets to be a judge of the High Courts or Supreme Court.

The superior judiciary’s constitutional powers in Pakistan represent an important check against arbitrary exercise of governmental authority by the executive. Our superior courts can, and do, declare a law unconstitutional if it conflicts with constitutional provisions. In fact, our Supreme Court has also made clear since 2015 that it can even declare a constitutional amendment as unconstitutional if it violates certain ‘basic features’ of our constitution -- and those basic features are defined by the judiciary. This is an enormous power; a power to re-write the constitution.

It is entirely possible to expect judges to rule by the law, to be dispassionate arbiters between two sides while also seeing them as individuals who, with their views of the law and their personal constitutions, often shape our national one. The more we talk about this, the better.

Our superior judiciary has, in many areas, commendably expanded the reach of fundamental rights under the constitution to limit state power. At the same time, there is no shortage of politically divisive legal issues being decided by our apex court. This is not unique to Pakistan, apex courts almost in every constitutional democracy decide issues of far-reaching importance for the polity.

But we are far from the days where those nominated for top judicial office appear before a committee of our representatives and answer questions about their worldview, past writings and, as is inevitable, personal and not just professional conduct.

Judicial appointments in Pakistan have been, traditionally, an insular and opaque process. Earlier tussles in 1990s confirmed the pre-eminence of the Chief Justice of Pakistan in the whole process. The most ambitious attempt in our history to reform the appointments process occurred through the 18th Amendment. By inserting Article 175-A into the constitution, parliament set in place a multi-tiered process for appointments of judges to, among others, High Courts and the Supreme Court.

Judicial Commission of Pakistan (JCP) proposes names and forwards them to a parliamentary committee -- the former is headed by Chief Justice of Pakistan and is populated by a majority of judges. The powers of the parliamentary committee have been the subject of litigation -- that deserves a separate piece, or multiple ones.

In a nutshell, as things stand, the pre-eminence and power of the JCP in the appointments’ process remains entrenched. In the odd instance where parliamentary committee has turned down names of those nominated by JCP, courts have retained the rule that JCP is the best judge of legal/judicial acumen. Parliamentary committee can take a different view but that view has to be substantiated by solid reasons -- and those reasons are justiciable, i.e. they can be challenged in a court of law. In order to ‘not confirm’ a JCP nominee, the parliamentary committee needs three-fourths of its total membership of eight. No personal appearance of any nominee before the committee is required and meetings of the committee, as per the constitution, are held in-camera.

To its credit, the Supreme Court has held that the involvement of public representatives in the appointments process does not, per se, undermine the constitutional ideal of the independence of judiciary. At least a plurality of the apex court in District Bar Rawalpindi (PLD 2015 SC 401) ruling accepted a distinction between appointments to judicial office and functioning in judicial office. The involvement of public representatives in the former, the court said, does not undermine judicial independence.

Despite these developments we see very little public debate in Pakistan about how we can improve the appointments’ process -- and make it more inclusive so our representatives can ask a nominee about her worldview, her take on certain precedents, her reading of the constitution etc. Bar associations, legal academy, practitioners, retired judges, politicians, members of the general public etc. all have an interest in how we appoint judges. More openness will only strengthen our democracy.

We need to discuss how to ensure that those being appointed to judicial office face some public scrutiny about their worldview and professional competence. By crying out that this will politicise the judiciary is akin to hiding your head in the sand; judges are not politicians, yes, but judges the world over past rulings that affect and shape local and national politics.

A bit of historical context here: in September 1922, Hari Singh Gour introduced, before the Central Legislative Assembly, his second resolution calling for the establishment of an all-India judicial tribunal (dubbed a Supreme Court) to function as a final court of appeal for all of India. Many interesting objections were raised. One of them was that India should not have a Supreme Court because it would compromise the independence of the judges of the High Courts and would encourage them to portray themselves in a favourable light before the appointing authority for the Supreme Court. Calcutta High Court’s Bench also communicated its disapproval of the idea of an all-India Supreme Court by saying this would "entail a distinct sacrifice of efficiency and the conditions of public confidence."

We now know that these objections had no serious merit. India saw a Federal Court and then a Supreme Court -- from our own experience in Pakistan, we know that High Court judges are not any less independent because they seek positions on the apex court.

Judges rule on political questions, including those who hold political office, regularly. Therefore, one should be cautious before buying the argument that greater involvement of public representatives will politicise an institution that shapes our politics. There is, of course, a balance here. The appointments process must continue to ensure dignity of those nominated to the bench. At the same time, nominees should be open to hearing questions about their worldview, their view on gender, minorities, state power, precedent etc.

It is entirely possible to expect judges to rule by the law, to be dispassionate arbiters between two sides while also seeing them as individuals who, with their views of the law and their personal constitutions, often shape our national one. The more we talk about this, the better.

Insular and opaque