Fixing judicial appointments: Part - II

In my earlier column, ‘Fixing judicial appointments’ (August 18), I had argued that the intractable debate between those advocating unrestrained discretion and those demanding ‘objective’ standards (such as seniority) was unnecessary. Instead, I had proposed that every member of the Judicial Commission be empowered to nominate candidates and that every JCP member be allowed to vote as they please.

Justice (r) Faisal Arab has responded to this idea through a recent column. Justice Arab disagrees with the concept and makes the following arguments:

One, that the CJP only has 11 per cent of the voting power of the JCP. Two, that allowing other judicial members of the JCP to nominate judges will result in the development of groups within the JCP. Members of the JCP will then be inclined to prefer individuals nominated by their own group which would not be good for the “disciplined functioning” of the JCP.

Three, that in the US, only the president nominates judges. Similarly, in the UK the nomination also comes only from the chairperson of the Judicial Appointments Commission (JAC).

Four, that giving the power to nominate only to one person is in accordance with the principle of “unity of direction.”

And, finally, that if all members of the JCP can nominate candidates, you may wind up with judges who were not even nominated by the CJP.

My response to Justice Arab is as follows: one, yes, the CJP only has 11 per cent of the voting power in the JCP. But then why does he have 100 per cent of the nominating power?

Two, you already have groups within the JCP. In fact, not just the JCP but the entire Supreme Court is bitterly factionalized. That is why we have the unedifying spectacle of competing press releases. More pertinently, that is why none of the five candidates proposed by the CJP in the last meeting of the Judicial Commission were approved.

My problem here is not with the diversity of opinion. Instead, quite the opposite. My point here is that diversity of opinion is here to stay and should be embraced. Appointments to the Supreme Court are a matter of supreme concern not only to members of the judiciary but to everybody involved in the profession of law and even every citizen of Pakistan. We, as a nation, have moved beyond the point where such grave decisions can be discreetly made behind a facade of collegiality. Yes, I think that open debate of such questions is better. But even if you disagree with me, the legal community is now simply too fractured, too politicized and too polarized to now believe in the benevolent judgment of an all-wise ‘paterfamilias’. To misquote Faiz, “jo toot gaya so toot gaya, tum kyun aas lagaye baithe ho?”

Three, the US has an expressly and exclusively political system of appointments in which the president alone nominates judges to the Supreme Court but suitability and competence are independently assessed by the Senate. It is therefore not comparable to Pakistan in which the judiciary insists that: (a) judges should be appointed on merit; and (b) politicians are unqualified to opine on judicial merit. To elaborate, political leaders (like the US president) have the legitimacy to make ostensibly arbitrary decisions because they are elected and represent the majority consensus. Judges have no such electoral legitimacy and hence cannot justify arbitrary decisions.

The reference to the UK is equally inapt. To begin with, the chairperson of the JAC is not even a lawyer, but a politician. Furthermore, the judicial members of the Commission are a minority of the JAC and include a cross-selection of judges from across the UK, rather than only the five senior-most judges of the Supreme Court.

Most importantly, the selection process for judges in the UK is open and competitive. Vacancies are normally advertised, and written applications are invited. In the case of appointments to the UK Supreme Court, the JAC consults a wide range of senior politicians and judges across the UK. After interviewing the candidates, a report recommending one candidate is sent by the JAC to the lord chancellor (again a political appointee, approximately equal to our law minister) who is then again required to formally consult senior politicians and judges. Unless the lord chancellor rejects the final report on the basis of written reasons, the appointment goes ahead.

How is this very detailed, very public, and very open process comparable in any way to our system?

Four, there is no principle of ‘unity of direction’ in the judiciary. In fact, there is no such principle at all. To the extent I have ever heard of any such commandment, the closest analogue is General Musharraf’s ‘unity of command’. However, ‘unity of command’ does not apply to the judiciary. My understanding is that judges are selected not for their ability to obey orders but for their ability to use their independent minds.

Five, I concede that if all members of the JCP are given the power to nominate, we may wind up with judges whom the CJP has not nominated (and by extension, may not want to be appointed). But this is not a terrible outcome. Legal history is replete with judgments in which chief justices have found themselves part of a dissenting minority. Nobody thinks any less of those judgments just because the CJP was in a minority. This is because the institution of the Supreme Court is larger than the person of the CJP. Similarly, if the CJP’s reservations regarding a particular nominee are overruled by a majority of the JCP, the heavens will not fall.

All nine members of the JCP have devoted their life to the law, in one form or another. All of them need to be given the respect they deserve. To take the most obvious example, the current JCP includes three judges who are scheduled to become the chief justice of Pakistan. It makes little sense to say that, as of today, those three judges cannot be entrusted with the power to nominate candidates but that as and when they become CJP, they may exercise that power to the exclusion of everyone else.

Laws are a means to social ends. The purpose of inserting Article 175A in the constitution was to ensure the transparent appointment of judges on merit so as to enhance the legitimacy of the judiciary; in other words, to ensure not only that justice was done (in terms of judicial appointments), but that justice was seen to be done.

The legitimacy of the judicial appointment process is now under grave threat. One main reason for the threat is the stalemate caused by the infighting amongst the JCP members (and its spillover into the media). However, the solution here is not a return to the days when the CJP’s word was law. We are beyond the point where suppression of dissent was either feasible or desirable. Those days are over. To quote Faiz again: “sheeshon ka maseeha koi nahi, tum kyun aas lagaye baithe ho?”

Concluded.

The writer is a lawyer of the Supreme Court. The views expressed in this column do not represent the views of his firm.

Twitter: @laalshah