Evaluation before elevation

The writer is an advocate based in Karachi.

The recent judicial appointments and disappointments stirred a fervent debate regarding the procedure and criteria for elevation of judges to the Supreme Court. While competence as a criterion for appointment was weighed against the principle of seniority, a concern raised across-the-board is the inherently arbitrary nature of the appointment process coupled with a lack of transparency.

Following the 18th Amendment to the constitution, the appointments of judges to the Supreme Court, high court(s) and the Federal Shariat Court are governed by Article 175-A of the constitution. Consequently, appointments to the superior courts are regulated by two forums, the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee (PC).

The insertion of Article 175-A through the 18th Amendment was challenged before the Supreme Court in the case of ‘Nadeeem Ahmed, Advocate v Federation of Pakistan’ on the basis that the said provision is violative of judicial independence. The court observed that the structure of governance contemplated in the constitution is based on the seminal concept of separation of powers, and obiter remarked that, “judicial independence is one of the core values of our constitution because it is inextricably linked with the enforcement of fundamental rights and the rule of law.”

The court admitted the petition and referred the matter to parliament for reconsideration in light of the suggestions made to modify Article 175-A to ensure that the appointment process is in congruence with the concept of judicial independence. Such suggestions, including the practice that if the PC does not affirm the JCP’s recommendation it is obliged to provide sound reasons for its decision and shall refer the matter back to the JCP for reconsideration, were implemented through the 19th Amendment to the constitution.

The JCP’s position was further fortified in the case of ‘Munir Hussain Bhatti v Federation of Pakistan’, wherein the Supreme Court overruled the decision of the PC, whereby the names of six judges (four from the Lahore High Court and two from the Sindh High Court) were not confirmed for extension in their tenure, on the basis that it was not in accordance with the provisions of the constitution. The court held that it is solely within the JCP’s domain to pass judgment on “the professional caliber, legal acumen, judicial skill and quality and the antecedents of the Judicial nominees”. While the PC can, “based on factual data and reasons, for instance, declare that a nominee is corrupt or is affiliated/partial making him a controversial choice, but judging the caliber of a nominee as a judge rests with the Commission [JCP].”

As observed in the case of Nadeem Ahmed supra, the judiciary has been separated from the legislature and the executive through a constitutional command and its structural insularity is an essential element of judicial independence. Notably, the constitution of the JCP for the appointment of judges to the Supreme Court – with the exclusion of the federal minister for law and justice, the attorney-general of Pakistan and a senior advocate nominated by the Pakistan Bar Council – is dominated by members of the judiciary including the chief justice of Pakistan, four senior most judges of the Supreme Court and a former chief justice or former judge of the Supreme Court. Further, the constitutional mandate for the removal of Supreme Court and high court judges is given to the Supreme Judicial Council, comprising the chief justice of Pakistan, the two next most senior judges of the Supreme Court and the two most senior chief justices of the high courts.

The constitutional procedure for the appointment and removal of judges suggests that the judiciary is principally a self-regulated branch of the state. In balancing judicial independence and accountability to the public, Juvenal’s query, quis custodiet ipsos custodes? – translated as “who will guard the guards themselves?” – becomes relevant.

In several common law jurisdictions including the United States of America, Canada and the United Kingdom, judicial evaluation programmes have been implemented to strengthen judicial accountability. Professor Stephen Colbran in his paper ‘A Comparative Analysis of Judicial Performance Evaluation Programs’ argues that, while traditional forms of judicial accountability including the principle of open justice, appellate review and parliamentary accountability through impeachment have bolstered high standards amongst the judiciary, they are not effective in measuring judicial performance. A more viable method for judges to engage in judicial self-improvement is “the analysis of judicial attributes, including legal ability, temperament, communication and other generic skills.”

In consonance with judicial insularity, the implementation of a programme to evaluate judicial performance can increase accountability and encourage self-improvement. While a formal appraisal system based on feedback from members of the executive and the legislative will be perceived as a threat to judicial independence, a model for evaluating judicial performance based on self-assessment and feedback from relevant stakeholders including fellow judges, advocates, litigants and court staff members may increase judicial consciousness.

To develop a palatable programme for judicial evaluation, guidance may be sought from the ‘Black Letter Guidelines for the Evaluation of Judicial Performance’ developed by the American Bar Association. Richard H Kuh, in his article ‘Giving Performance Feedback’, stated that, “the program should give judges useful information about their behavior, including punctuality, preparation, control over proceedings, attentiveness, communication, skills, integrity and perceived fairness in conducting court business.”

Additionally, reference may be made to the criteria for judicial evaluation developed in various jurisdictions. Colborn, through his comparative analysis has derived eight broad criteria from a variety of international examples to evaluate judges. These include: (i) legal ability; (ii) impartiality; (iii) independence and integrity; (iv) judicial temperament; (v) diligence; (vi) communication skills; (vii) management skills; and (viii) settlement skills.

Like the model behavior-based survey instruments developed by the American Bar Association, surveys can be designed based on the aforesaid criteria and the same can be disseminated to multiple stakeholders to collect data to evaluate judicial performance. The data, constituting a quantitative assessment, can be shared with individual judges to aid self-development and where relevant to members of the JCP to inform their decision-making under Article 175-A (8) of the constitution.

Similarly, in the United States, the American Bar Association’s Standing Committee on the Federal Judiciary plays an instrumental role in conducting independent peer evaluations of the professional qualifications of nominees to the federal bench to assist the Senate Judiciary Committee. A central feature of the evaluation(s) is “the extensive confidential interviews with a broad cross-section of judges, lawyers and others to obtain their assessments of the nominee’s integrity, professional competence and judicial temperament, and the underlying basis for such opinions.”

The inculcation of a performance-based evaluation program will also advance rule of law. Professor A V Dicey in conceptualising rule of law stated that “the rule of law” meant, “not only that with us no man is above the law, but (which is a different thing) that here, every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”

The judges of the superior judiciary are bound by a constitutional oath as they have sworn to abide by the code of conduct issued by the Supreme Judicial Council. Article X of the Code of Conduct stipulates that a judge should work efficiently and should expediently dispose of cases to minimise the suffering of litigants. While a programme for judicial performance evaluation may be used as a tool for self-development by some, it will be an overt reinforcement of constitutional duties for all. The mere fact that an evaluation is conducted will serve as a reminder that the public is entitled to expect superior performance from the judiciary. Although the judiciary should not be swayed by public opinion, it cannot absolve itself of accountability to the public.

The development of transparent guidelines for judicial performance evaluation stipulating the usage, methodology and criteria for judicial evaluation will systematically improve the judiciary and placate the concerns of the legal fraternity regarding the arbitrary nature of the procedure for judicial appointments.

Email: maria.shah257@gmail. com