Seniority and judicial appointments

The reservations expressed by the Sindh High Court Bar Association and, later, by the Supreme Court Bar Association about the intended elevation of a ‘relatively junior’ judge of the Sindh High Court to the Supreme Court of Pakistan have reminded us of the large credibility gaps that continue to afflict public life in Pakistan. Questions have been asked about the choice of the particular judge while other senior judges and the chief justice of the Sindh High Court continue to be by-passed for elevation, year after year.

Appointments to the superior judiciary have always been an occasion for controversy. Why should a person be appointed to any of the high courts or the Supreme Court of Pakistan? Given the nature of the function and the scope of the power the superior judiciary has come to exercise, reliance on seniority as the overriding principle is a certain path to instilling mediocrity into the judicial landscape. A conveyor belt that privileges the first in line is suitable for the delivery of baggage. It does not deliver juristic vision. Neither the senior most sessions judges nor the senior most high court judges should see elevation to the high courts or the Supreme Court of Pakistan as an entitlement. Lawyers chosen for elevation should also pass through a process that examines spirit and vision as much as narrow conceptions of competence and integrity. This is easier said than done.

Why are ‘spirit and vision’ important to the performance of the judicial function? This is a question that requires an examination of what it is that judges of the superior courts do when deciding cases. A common perception is that judges apply the law to the facts before them. The reality is more complex. Spirit and vision come into play in the interpretation of the text of the law as well as assessment of the facts. Consider.

In Mukhtaran Mai’s case, two opposing judgments were written by Justices Saqib Nisar and Nasir ul Mulk of the Supreme Court. The former found in the evidence presented insufficient evidence of struggle by an honest woman, given that the medico-legal report had failed to identify significant scratch marks or other damage to the body of Mukhtaran Mai. Justice Nasir ul Mulk, on the other hand, focused on the milieu of patriarchal repression and the interplay of shame and courage in assessing the weight of the statements made by Mukhtaran Mai and the other witnesses. Both judges relied on their respective visions of social reality to disbelieve or accept the statements of facts placed before them. The fact that Justice Nasir ul Mulk was left in a minority was a consequence of the vision imposed on the facts by the other judges on the bench. A differently composed bench would have yielded a different majority and a different verdict.

In Zulfiqar Ali Bhutto v The State, 1977, the four judges who overrode the dissenting three in rejecting Mr Bhutto’s appeal against the sentence of death imposed on him by the Lahore High Court exhibited a different set of factors that determine judicial outcomes. The Bhutto verdict is now read, if at all, as a withered testament to the poverty of spirit that infests its hundreds of pages that purport to apply the law to the facts. Established jurisprudence and venerated precedents were overcome by the majority in upholding the death sentence on the basis of the testimony of an approver, described earlier by the apex court as a self-confessed wretch whose self-serving averments must be considered the weakest form of evidence known to a just legal system.

In his memoirs Justice Nasim Hassan Shah, who was a member of the majority of four, has described the deal that he had offered to the three non-Punjabi judges on the bench led by Justice Dorab Patel. Justice Shah had offered Justice Patel to convert the death sentence into life imprisonment if the three non-Punjabi would agree to upholding Mr Bhutto’s conviction on the charge of murder. Justice Shah recalls the wrath the judges faced at the time from the powers that be and mourns Justice Patel’s moral obstinacy in rejecting the deal he had offered. The spirit exhibited by judges has clearly determined judicial outcomes at critical moments.

The legal challenge launched in 1954 by the speaker of the disbanded constituent assembly, Moulvi Tamizuddin, was successful before a bench of the Sindh High Court headed by Chief Justice Constantine. The Federal Court headed by Chief Justice Munir, with Justice Cornelius dissenting, overturned the Sindh High Court verdict by drawing upon British precedents from the 1680s to hold that the dominion status of the supposedly independent Pakistan continued to subserve the constituent assembly to the assent and will of the British Crown’s representative, the governor general.

The judgments of the Sindh High Court and the Federal Court betray the purposes of the two sets of judges in interpreting the law. The Sindh High Court saw the achievement of independence in 1947 as imbuing the constitutional order with one overriding purpose – the creation of a sovereign, democratic state with an independent judiciary empowered to hold all authorities of the state to account. The federal court, on the other hand, read into the act of independence the continuation of a dominion in which the governor general had ultimate authority to impose his will on the state and its institutions.

In recent years, the idea that judges, even those who claim to be articulating the original intent of the framers of the law, in fact read the text of the law not literally but in order to achieve certain purposes has gained widespread acceptance as a normative principle. What are the purposes that a judge may seek to achieve through his/her interpretation of the text of the law and the assessment of the facts? This is the central question that modern jurisprudence has grappled with since the emergence of the great jurisprudential texts by Ronald Dworkin in the 1970s and the 1980s, ‘Taking Rights Seriously’ and ‘Law’s Empire’.

For Dworkin, the judiciary functioning as an unelected body in a democracy must find the purposes of the law in the text of the law enacted by elected parliaments and in the highest principles that the constitutional order is meant to uphold. It is in the search for the purposes and the high principles embedded in the law and the constitution that the spirit and vision of different sets of judges become matters of pivotal importance. In our context, one could add the capacity to withstand the desires, real or perceived, of the powers that be to the pivotal mix.

Since the judgment of the Supreme Court in the ‘Al Jihad case’ of 1996, the process of judicial appointments has remained in a flux. The ‘Al Jihad’ judgment took the power to appoint judges away from the prime minister and handed it, in effect, to the chief justice of Pakistan. The near absolute power held by the chief justice of Pakistan and the often arbitrary appointments that were made led to disquiet that the 18th Amendment attempted to address. A judicial commission that consisted of serving senior judges as a minority along with other persons from the legal profession and the government was set up with an accompanying parliamentary committee drawn from the treasury as well as the opposition benches. The idea was to allow assessment of both the legal competence and integrity as well as the spirit, vision and affiliation of individuals under consideration for judicial appointment.

In a challenge to the composition of the judicial commission, the Supreme Court of Pakistan desired parliament to reconsider the composition of the judicial commission. This resulted in the 19th Amendment that reconstituted the judicial commission and provided a majority to serving judges and their nominees. In the 2011 case of ‘Munir Bhatti’ the Supreme Court rendered a judgment that restricted the role of the parliamentary committee to considering material that might not have been placed before the judicial commission. This judgment completed the process of reassertion of judicial power over the appointments process.

The current disquiet about the proposed elevation to the Supreme Court of Pakistan of a judge who is not the senior most in the Sindh High Court underlines the fact that the present system of judicial appointments lacks credibility when it comes to identifying the best and the brightest for elevation or appointment. Seniority is a tool that is perhaps acceptable for appointment as chief justice of the high courts and the Supreme Court of Pakistan. The honourable chief justices are first among equals with added administrative responsibilities. Their most vital power is the power to constitute benches for particular cases. While there is a need to channelize this power, seniority can remain the operative principle for appointment as chief justice. This principle, however, fails in assessing the spirit, vision or the technical competence of those being considered for judicial appointment. The Supreme Court of Pakistan must not become the last staging post of the senior-most. It deserves vision and spirit along with competence that must be assessed through a transparent process that inspires confidence.

The writer is an advocate of the Supreme Court of Pakistan.

Email: salmanr2002@hotmail.com

Twitter: @salmanAraja