The seniority trap

Let us begin with two basic propositions: one, competence is not the same thing as seniority; and two, it is vitally important that only the most competent judges sit on the Supreme Court of Pakistan.

Given these two axioms, the logical conclusion is that judges of the Supreme Court must be appointed on the basis of competence, not just seniority.

My learned friend, Salahuddin Ahmed, disagrees. His argument, including as put forward in this newspaper a few days ago, is as follows:

1. The violation of seniority hurts the sentiments of serving judges.

2. If chief justices can be appointed on a seniority basis, why not Supreme Court judges?

3. Because the Supreme Court has prescribed no criteria for the appointment of Supreme Court judges, appointments are being made on the basis of nepotism and hidden agendas.

4. Seniority is preferable as a proxy for merit than such unrestrained discretion.

5. The earlier Supreme Court judgment on this point is intellectually dishonest.

My response to these points is as following:

1. Judges are not bureaucrats.

2. Appointment as the chief justice of a high court is very different from appointment to the Supreme Court.

3. The absence of “objective” criteria is because judicial merit cannot be captured by such criteria.

4. Such absence does not in turn mean that judges are being appointed on the basis of nepotism and favoritism.

5. The earlier Supreme Court judgment is not intellectually dishonest: it is, however, factually dishonest.

Let us begin with the fundamental point that high court judges are not the equivalent of grade 17 bureaucrats being appointed to junior posts with their eyes set on retiring as a federal secretary at the end of a 40-year career. Becoming a judge of the high court is an end in itself. That is why most high court judges are lawyers who have already achieved a certain level of professional success and renown.

This simple fact is reinforced by the numbers. There are 145 slots for high court judges in Pakistan. By comparison, there are only 17 Supreme Court judges. The vast majority of high court judges can therefore never become Supreme Court judges, irrespective of what criteria are used.

In short, the idea that not observing seniority hurts the tender sentiments of serving judges is absolute nonsense. Seriously people, being a high court judge gives you the power of life and death over the citizens of this country. That is power enough. If being a high court judge is not good enough for you, please don’t accept the appointment.

Second, the focus on seniority implies that judicial service is a continuum, that there is no real difference between the job of a high court judge and the job of a Supreme Court judge. This is incorrect. Just like a high court judge plays a very different role than a lower court judge, a Supreme Court judge plays a different role and handles different matters than a high court judge. To take one simple example, about half of high court work is taken up with routine criminal matters like bails and murder references. Very little of this work makes it to the Supreme Court (and rightly so). Thus, while you need a certain number of pure criminal-side judges in the high courts, there is no equivalent need in the Supreme Court.

Third, appointment as the chief justice of a high court is not the same as appointment to the Supreme Court. The only difference between the chief justice of a high court and his/her fellow judges is that the chief justice enjoys additional administrative powers. In that context, it can be reasonably presumed that the senior-most high court judge will be capable of handling their additional administrative duties. That assumption is not valid in the context of elevation to the Supreme Court. People who argue that seniority alone is sufficient to identify Supreme Court judges ignore both logic and history.

We come now to the crux of Mr Ahmed’s argument: that the absence of well-defined objective standards expressly stating criteria for appointment to the Supreme Court renders the whole process arbitrary and a facade for nepotism and favouritism.

The seniority-wallahs are correct in that there are no prescribed criteria for appointment to the Supreme Court. They are wrong in concluding that appointments are therefore made on the basis of nepotism and favouritism.

In simple terms, it is not possible to come up with objective criteria for determining judicial merit. Mr Ahmed waves towards a few criteria (like number of judgments) but never really grapples with this issue, knowing that those criteria don’t mean anything. The issue is not the number of judgments but rather the quality of judgments. And the quality of a judgment is impossible to determine objectively.

Part of the problem here is the superior judiciary’s own insistence that objective criteria must be applied to senior public level appointments (such as, for example, appointment as MD PTV). But the fact that the judiciary insists on interfering with public-sector appointments is no excuse for compounding that error by applying the same approach to judicial appointments.

Finally, the absence of objective standards does not necessarily mean there are no safeguards against nepotism and favouritism. In order for any individual to be appointed to the Supreme Court, his/her appointment must first be considered and approved by a nine-member judicial commission led by the chief justice of Pakistan. The commission further includes the four most senior judges of the Supreme Court, a retired judge of the Supreme Court, the federal law minister, the attorney general for Pakistan, and a senior advocate nominated by the Bar Council for Pakistan. Ultimately, it is their considered consensus which determines who is to be nominated to the Supreme Court.

Does the considered view of so many great and learned people mean that they never make mistakes? Obviously not. But I would much rather have them deciding this issue than anybody else. And I would certainly have them try and pick the best person for the job rather than throw up their hands and fall back on the crutch of seniority.

Furthermore, seniority amongst judges is determined first by date of appointment and then by date of birth. So, if ten judges are appointed on the same day, the senior-most judge out of that batch will be the oldest on the date of appointment. Judicial seniority is thus determined on a completely arbitrary basis. Are we really now reduced to arguing that the most senior and learned members of the legal community are incapable of identifying legal merit in any manner superior to that of pure chance?

Mr Ahmed has stated on social media that the 2002 judgment of the Supreme Court which decided this issue is intellectually dishonest. I disagree. That judgment is entirely correct as a matter of principle. What makes it dishonest is the pretence that the individual then favoured was in any way the superior choice.

Ultimately, the law confronts us with the problem that we have no choice but to trust somebody, somewhere. As Justice Jackson remarked in relation to the US Supreme Court, “We are not final because we are infallible. We are infallible because we are final.”

Trusting the nine members of the Judicial Commission with the awesome responsibility of picking Supreme Court judges is not an ideal solution. But it is certainly a better solution than appointing judges on the basis of seniority.

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

Twitter: @laalshah