Unlocking the top slots

With the power to make or break governments, the Supreme Court (SC) has undoubtedly emerged as the most powerful institution in the country. Whether it is the fate of one legislator or the entire legislature, an executive or the entire government, the head of a political party or an entire political party, ultimate authority vests with the SC. Even the constitution is ‘what the SC says it is’. So when hardly anyone can deny that slots to the top court must be filled with persons of extraordinary calibre, why then the deadlock? As I see it, it is not a question of whether but how the best should be selected.

Traditionally the senior-most chief justices of the concerned high courts would be nominated for top slots. But what happens if they are not the best; should you consider the next one in line or can you just take a quick nosedive and pick any one from the bottom say No26 in the seniority list?

Tale, for instance, Justice Qazi Ameen from the LHC (as he then was). All those ahead of him in the seniority list were neither interviewed nor even nominated before the Judicial Commission of Pakistan (JCP) and lawyers ask that, unless he was recommended through some divine source, what secret means were pressed into service to hit such a jackpot for the top court? This inevitably leads to the seniority v merit debate.

To be fair, even the bar councils to some extent agree that only the best should make it to the SC – but only once criteria are duly notified. Until then the senior-most candidates should be selected for top slots. Hon’ble CJ SHC Justice Ahmed Ali Sheikh and Hon’ble CJ IHC Justice Athar Minallah have, notwithstanding their seniority, been repeatedly ignored. What harm can it cause? After all, some of the best judges in the SC have first served as CJs in their respective provinces. The experience and skill acquired as a CJ is unmatchable; why would you be heading the entire judiciary of a province if you cannot even be nominated for the top slot? Surely the harm that you would cause to the entire judiciary of the province would be far greater a consequence. These senior judges have a legitimate expectation to be considered for top slots and when the minutes of the meetings of the NJC are not made public senior judges are stigmatized when they are superseded by their juniors.

Citing this decade as an example, most lawyers argue that surely the provincial CJs (including Justice Bandial who was once a CJ of the LHC) have proven their mettle and stand out in comparison to their other brethren. In contrast Justice (r) Gulzar who had ‘jumped the queue’ hasn’t added much to the jurisprudence yet ironically his lordship was seen at the forefront of rejecting senior-most judges for want of competence. Ignoring senior judges in the absence of notified criteria significantly affects the independence of the judiciary when really the judges of the high courts ought to be independent in their decision-making. As a high court judge you may be tempted to please the judges of the top court if you know that those sitting there have unfettered discretion to make or break you.

Some, on the other hand, argue that the National Judicial Commission (NJC) consists of men of exceptional calibre and experience who would best be suited to do this job without being constrained by any rules as there can be no straight jacket formula for such appointments. After all, some of the best appointments such as Justice Munib Akhtar and Justice Mohammad Ali Mazhar or the first woman SC judge Justice Ayesha Malik are a testament to the fact that the NJC knows best.

Between the two, the bar has made out a compelling case indeed. Nonetheless, as a practising lawyer from the Sindh High court (SHC) I must acknowledge that Justice Munib Akhtar and Justice Mohammad Ali Mazhar are unquestionably some of the finest judges from the SHC. Even the present nominations made by the CJP in the case of Justice Rizvi and Justice Siddiqui could hardly be questioned on merit – yet they too became subject to the seniority v merit debate.

Let's take into picture the recently released audio clip of the JCP meeting. In the minds of many, it should not have been released but to me, it was a fantastic discourse – an eye-opener. When some of the members reiterated the seniority principle and cited examples of some very competent senior judges, the CJP reassured the members that there was a zero tolerance policy on integrity. Although it was never doubted, the audio tape confirms one thing: those dropped never had any integrity issues. On merit too, the CJP was impressed with Justice Tariq Masood’s analysis and did not disagree with him. Nonetheless, the senior-most judges remain unnominated and hence never considered by the JCP to date.

Justice Aqeel Abbasi from the SHC, aside from being a senior judge is also sound on law and not only has a great disposal ratio but very few of his judgments have been reversed by the apex court – and yet that he has not been elevated was a common grievance raised by most members of the JCP who wanted seniority-based appointments. No one – not even the CJP – denied or said anything to the contrary. The CJP noted with concern that there were reports of temperament issues with Justice Abbasi, especially after the previous elevations of his juniors. With utmost respect to the observation, being a practising lawyer from the SHC, I find Justice Abbasi to be one of the best especially when it comes to demeanour and temperament. Repeatedly ignoring a senior judge even if he is on merit and appointing his juniors instead is harsh but then penalising him for not being happy about it is even harsher.

Lastly and to be fair to the CJP, my lord was quick to both appreciate Justice Tariq Masood’s meticulous analysis and agree to it so much so that his lordship immediately withdrew his own nomination of Justice Phulpoto from the SHC. The CJP did however disclose why this nomination was made in the first place: (i) that there was a need for an expert from the field of criminal law; and (ii) the composition of judges in the SC also has to be kept in mind – perhaps my lord had a Sindhi speaking judge who hails from Sindh in mind. This just kills the entire argument of ‘Top people for the top slots’. But even on this criterion, one can immediately think of many competent names. The fact that those were left out speaks volumes of the inherent flaws in the present scheme.

The apex court has invariably ruled that public appointments must be made in an open and transparent manner, discretion must be structured and there is no such thing as unfettered discretion; yet in the matter of its own appointments the entire exercise remains completely unregulated. This doesn’t however mean that the appointments are made arbitrarily. On the contrary, the audio clip of the JCP’s meeting – especially the lengths at which each and every one’s candidature was thoroughly scrutinized – eliminates any such insinuation. Whether the course adopted by the JCP was proper and effective and the considerations relevant enough is a different matter. It is also one on which lawyers have agitated and also proposed certain parameters. But let’s say that, while the JCP today consists of honourable, just and fair persons, what is to ensure that every single time in the future the JCP will always conduct itself fairly when there is absolutely nothing (neither criteria nor any set of rules) that prevents them to do so? In the matter of these appointments too, justice should not only be done but should also be seen to be done.

As the deadlock on notifying criteria continues, the top positions remain blocked. More than the criteria, the heart of the matter lies in the power of the nomination. The constitution empowers the JCP & not the CJP to make these appointments. The power to reject must therefore also vest in the same body and not the CJP alone. When the senior judges are not nominated by the CJ and others are nominated instead (on the principle of merit), in essence, the senior judges are rejected by the CJP single-handedly and not by the JCP. This hen in fact such power of rejection vests exclusively with the JCP and not the CJP.

The senior-most judges must therefore be considered automatically by the JCP & only once the JCP considers them unsuitable can the next in line be considered. In the search for the very best, the JCP may still decide to pick someone from the bottom but at least this time the seniors too would have been nominated and fairly considered by the entire JCP. This would be a win-win for all! The JCP rules cannot be cited as an impediment. They can either amicably be amended by the JCP or struck down on account of being ultra vires the constitution.

One hopes that when it is finally time, Hon’ble Senior Puisne Judge of SC Justice Isa lives up to his promise and devolves and delegates the powers of the CJP. However, knowing the present SC CJ his lordship is a man of conscience too, one who has never feared admitting to his mistakes even publicly; one also hopes that he beats Justice Isa to it!

The writer, a barrister-at-law, is an advocate of the Supreme Court of Pakistan.