Transparency matters

On December 29, barely a week after calling for proposals for reforming judicial appointments and shortlisting eight significant areas on which proposals were sought from additional persons, the Judicial Commission of Pakistan (JCP) issued a press release.

In the document, the JCP provided a summary of the second meeting of the rulemaking committee that took place on December 29, 2023. The meeting was held to ‘finalize’ the draft rules of procedure for the commission to appoint judges of the constitutional courts in the country while complying with the collegial and inclusive decision-making process enshrined in Article 175-A of the constitution.

It is hoped that Articles 25 and 34 of the constitution were also amongst the considerations while revising these Rules as public bodies like the JCP should be mindful of the fundamental rights and principles of policy in all their endeavors just as much as any other state institution. These clauses should be as important for the JCP as Article 175-A of the constitution is.

The press release also confirmed that the committee received valuable and insightful suggestions and recommendations sent by co-opted members whose suggestions were ‘considered’. These people include, but are not limited to, Supreme Court Judge Mrs Justice Ayesha A Malik, Supreme Court Judge Ms Justice Musarrat Hilali, Sindh High Court Judge Mrs Justice Kausar Sultana Hussain, Islamabad High Court Judge Ms Justice Saman Rafat Imtiaz, Punjab District and Sessions Judge (r) Ms Mahrukh Aziz, Khyber Pakhtunkhwa District and Sessions Judge (r) Mr Hayat Ali Shah, Sindh District and Sessions Judge (r) Mr Imdad Hussain Khoso, Balochistan District and Sessions Judge (r) Mr Rashid Mehmood, Advocate Supreme Court Ms Hina Jilani, Legal Adviser for the International Commission of Jurists Ms Reema Omer, and public-sector governance expert Mr Rafiullah Kakar.

The eight important areas that have been shortlisted for making rules show that this time around a lot more thought appears to have gone into expanding on the details of these processes and a lot of breakdown is visible in the way the topics have been enlisted so that detailed recommendations can come from members and co-opted persons on individual aspects of judicial appointments.

For instance, from the establishment of a secretariat of the commission to the process for convening meetings and making decisions therein, all procedures are carefully planned. There also appears to be an effort to come up with a clear yet different basis on which appointments will be made at high courts and the Supreme Court, going forward.

Unfortunately, the press release remained silent about what these recommendations and proposals were. After the SC (Practice and Procedure) Act, the revision of the Rules for the appointment of judges of the constitutional courts is the biggest most important historic development in the country today, which will have a far-reaching impact not only on fair representation in the justice sector but also on public confidence in the judiciary as an organ of the state.

The press release, however, went on to state that the committee deliberated upon the second revised draft of the proposed Rules and “after threadbare discussions ‘approved’ the same with few amendments.” The ‘approved’ draft Rules are to be placed before the Judicial Commission of Pakistan in its next meeting for ‘finalization’.

However, interestingly, despite the professed ‘approval’ of the second revised draft, the press release stated that the committee considered seeking input from Lahore High Court Judge Justice Aalia Neelum, whose name it said, was inadvertently not mentioned in the co-opted members.

This shows that the second revised draft cannot be considered ‘approved’ until at least her recommendations come in and are ‘considered’ by the committee. I also don’t understand why and in what context the word ‘threadbare’ was used to describe the quality of the discussion that took place.

According to Collins Dictionary, “if you describe an activity, an idea, or an argument as threadbare, you mean that it is very weak, inadequate, old or no longer interesting.”

The original 2010 Rules were susceptible to criticism, particularly by members of the bar for being arbitrary and promoting cherry-picking of kith and kin, as only the chief justice of the concerned court had the power to initiate nominations for judicial appointments.

It is extremely important now that transparency is ensured at each stage of the process. For transparency and greater public confidence in the process leading up to the finalization of the revision of the 2010 Rules, it is important that all the proposals and recommendations so received are made public along with the revised Rules so that there is an opportunity to reflect on the entire process and outcome document in a meaningful way given how important a subject this is for fair representation in the justice sector and public confidence in the judiciary.

It holds little meaning to simply state that recommendations received by different persons were ‘considered’ and the revised draft was ‘approved with few amendments’ unless the same is accompanied by disclosure of what the actual recommendations for reforms were.

Reform is a rare opportunity and one that requires deep reflection and engagement but above all for any reform process ensuring transparency in the process, proposals and the outcome is most important so that the public and all stakeholders are informed of how the decisions were made. Even if the names are to be redacted, there needs to be some way for the committee to disclose all the proposals that were placed before its consideration to promote transparency.

Transparency and disclosure in this matter are vital for restoring public confidence in the system of judicial appointments. It is hoped that after Justice Neelam’s recommendations are received and considered, the bodies concerned will provide further details of all the proposals offering all stakeholders a chance to be informed and to engage with the process in a more meaningful and transparent manner.

The writer is a diversity and inclusion advocate. She tweets/posts @NidaUsmanCh