Credibility and judicial appointments

In his article in these pages , ‘Seniority v merit: a false binary’ (Aug 5), friend and elegant thinker about law and life, Salahuddin Ahmed who is presently the justly celebrated president of the Sindh High Court Bar Association, has made incisive comments on my article ‘Seniority and judicial appointments’ that was carried on these pages on July 19. Ahmed and I disagree about the adoption of seniority as the overriding principle for appointments to the Supreme Court of Pakistan. He appears to favour it. I do not. Let us consider further.

The present controversy about the elevation of a relatively junior judge of the Sindh High Court to the Supreme Court of Pakistan raises several general questions of principle that have clear correct answers but no credible mechanism for arriving at the correct solutions. The best should be appointed to the superior judiciary but how do you arrive at agreement about who is the best?

This particular elevation, recommended by a razor thin majority of 5-4 in the meeting of July 28 of the Judicial Commission constituted by the constitution for considering such elevations, has also raised issues of context and manner specific to it. A couple of weeks ago a 5-4 majority had decided to defer the elevation of the ‘junior’ judge. One member, a serving honourable judge, appears to have switched sides for reasons not clear, and altered the majority. The bar associations have demanded reasons for ignoring judges senior to the judge being elevated. No reason that might be considered plausible has been provided. Whispers abound about the elevation being a part of a court-packing campaign for a so-called curative review in a case involving the judiciary. These are times of sadness and crisis at the judicial apex.

Ahmed seeks seniority as the basis for elevation to the Supreme Court until a mechanism for determining the relative merit of judges at different levels of seniority has been implemented. Only then, for Ahmed, should the relatively junior judges be elevated in preference to those more senior to them. The fact that Ahmed’s support for seniority is contingent on the absence of a more nuanced process amounts to accepting the inadequacy of seniority as the overriding basis for elevations to the Supreme Court. However, neither he nor the bar associations have proposed the contours of the more nuanced mechanism.

The life of the law is indeed experience and not (always) logic, as the eminent American jurist and judge Oliver Wendell Holmes, cited by Ahmed, famously observed. One only has to look at the chief justices and senior judges of the high courts of the last, say thirty years, to balk away from appointments to the Supreme Court on the basis of seniority. Looking at those among the senior-most who were not elevated to the Supreme Court, one feels gratitude that seniority was not applied as the overriding principle for judicial appointments.

A personal memory, a couple of decades old by now, abides of one of the senior high court judges, renowned for his technical legal competence and unblemished as regards his financial veracity, who was not elevated to the Supreme Court of Pakistan. The memory is of his lordship denying bail to a ten-year-old child of a minority community with the observation uttered aloud but not written in the order, ‘Evil must be nipped in the bud.’ A few months later, I happened to run into his lordship at the Lahore airport while awaiting the flight to Delhi in order to attend a conference on the right to information. On discovering my destination, his lordship commented that his preferred mode for crossing the border would be atop a tank. Personal memories coalesce to constitute collective wisdom drawn from experience.

Even though denial of seniority as the overriding basis for elevations may have prevented some with clouded visions from being appointed, it has to be accepted that discretion works both ways. A discretionary process for elevations has indeed resulted in the elevation of those who later played along with schemes against democracy or helped deepen misogyny. In response to my reference to the Tamizuddin Case of 1956, Ahmed reminds us that the author of the judgment in that case, Chief Justice Munir, had been hand-picked by the then governor-general Ghulam Mohammad for elevation to the federal court in preference to those more senior to him. This, however, does not prove that those reaching the Supreme Court through the conveyor belt method of seniority will always stand against assaults on the democratic process or will not act with prejudice against communities they find worthy of being nipped in the bud.

There is no escaping a process of judicial appointments in which discretion is not merely structured by some hide-bound rule of seniority but by debate and exchange of views. Rare is the exercise of discretion that leaves all sides to a debate satisfied. Given that the judicial function is so critically dependent on intangibles like vision and inclination, there can be no perfect process for judicial appointments. What one aspires for is transparency in the carrying out of the debate and for all relevant considerations being taken into account at the time of appointment. Often one has to understand that perceptions of bias or regressive thinking in a serving high court judge considered for elevation to the Supreme Court will not find articulation in the reasons formally stated for denial. Ultimately those appointed to fora that make recommendations or take decisions about the highest offices of the state must possess credibility for their recommendations and decisions to be generally acceptable.

Lack of credibility is an unwanted attribute that afflicts much of the institutional framework of the country, even where the governing rules provide for security and independence. For instance, the chairperson of the National Accountability Bureau is appointed with bipartisan political consensus. The chairperson has security of tenure and complete functional independence. One would expect NAB to be an institution devoted to the cleansing of public life under the stewardship of eminent chairpersons who could possibly have no objective except high-minded public service. The reality that is in fact delivered is generally perceived to be less than grand. Poverty of spirit and a desire to serve the interests of the powers that be seem to overwhelm the formal independence granted by the rules. Why is this so? Why are capitulation and the concomitant lack of credibility such pervasive features of our governance structures?

While a mechanism for judicial appointments is prescribed by the constitution, repeated attempts by various ‘de facto minders’ to overwhelm the system have left this mechanism with tarnished credibility – at least in the eyes of the bar associations protesting across the country. On paper, the constitutional prescription for judicial appointments through a judicial commission and a parliamentary committee appears to be reasonable enough and was hailed as one of the achievements of the 18th Amendment to the constitution. In practice, the constitutional mechanism has delivered outcomes that have not escaped allegations of nepotism and partisan packing of the judiciary.

In recent decades, commissions – with membership drawn from the judiciary and civil society – for appointments to the superior judiciary have become quite the norm around the world. The commissions in South Africa, the United Kingdom and Canada have functioned reasonably well and have generated appointments with nowhere near the controversy judicial appointments attract in Pakistan. Credibility rather than lack of rules is the issue.

How does credibility set into the governance and judicial framework of a country? The Asghar Khan case decided by the Supreme Court of Pakistan in 2012 provides a window for understanding institutional credibility and the lack thereof. That case pertained to the manipulation of the democratic constitutional process during and in the wake of the general election of 1990. The case was registered as a human rights matter in 1996 and meandered for no good reason, but one overwhelming bad reason, till 2012 when it was finally taken up. The then army chief and the ISI head were found responsible for the conspiracy to subvert the general election of 1990. Immediate prosecution under the relevant laws was ordered by the apex court. After nine years, not one prosecutorial finger has moved. No one is particularly concerned about the implementation of a judgment that was meant to lay down retribution for misadventures. A fearful government has tried repeatedly since 2019 to have the moribund implementation proceedings formally closed. The court has demurred. Fear and credibility do not sit well together.

The bar associations are entirely correct in engaging with the process of judicial appointments and asking the questions that they have asked with respect to the appointment of the relatively junior judge of the Sindh High Court to the Supreme Court. Each such appointment should be scrutinized on a case-to-case basis, with a view to enhancing the credibility of the process. However, raising seniority per se as the dominant principle for judicial appointments is to expose the judicial system to a game of chance. We deserve better than a conveyor belt that will deliver what is of value as often as it will deliver flotsam.

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

Email: salmanr2002@hotmail.com

Twitter: @salmanAraja