Justice Ayesha Malik has been nominated by the Judicial Commission of Pakistan (JCP) for appointment to the Supreme Court. This step has been universally acclaimed. It is an important milestone. Symbols matter. Having a woman as a judge in the highest court of the land sends an important message. It shows that women can rise to the highest positions. The legal profession and the bench remain male dominated. Gender equality is a distant goal. Yet for all working women, particularly for female lawyers, there is now a new role model. This is good for the legal profession and good for the country.

Her appointment is being regarded as a fait accompli. Constitutionally, however, the process is not complete. The constitution envisages that the JCP will nominate an individual for a vacancy to the Parliamentary Committee that to which four members are nominated by the government and four by the opposition. The committee can only refuse to confirm the nomination from the JCP by a three fourths majority. If it refuses, it must give reasons. If the committee does nothing, the nomination is deemed to be confirmed after fourteen days. Once it is confirmed, the prime minister forwards the nomination to the president for appointment. As long as the government or the opposition support a nominee, the nomination will be approved or deemed to be approved. Even if the committee rejects the nomination, its decision can be judicially reviewed by the courts. As is the case with judicial accountability, so it is with judicial appointments. The judges have the final say. The role of the Parliamentary Committee in judicial appointments is meaningless and has been reduced to a rubber stamp.

Justice Malik’s nomination was marginal. Five members of the JCP supported it and four members opposed it. The opposition which found support in the the Bar leadership was based on the argument that until transparent criteria for nominations are developed, seniority should be followed. The supporters of the seniority principle generally conceded that it was not an appropriate basis for selection in the long term. In fact, it would mean you do not need any commission to consider appointments to the Supreme Court and the role of the JCP would also be simply of a rubber stamp. Yet, they insisted that, to avoid the risk of misuse of power by the JCP, a process they acknowledged as being ultimately inadequate, should be followed in the interim. It is like asking for wrong decisions to be made in the short term to enable the long term future to be better. We all know where we have seen this type of arguments in the past.

The JCP has a duty to act in good faith and nominate the individuals it considers most appropriate for appointment to the Supreme Court. No one has alleged that Justice Malik’s nomination would not have been justified on any merit-based criteria that may be adopted. She was not nominated because she was a woman but because she was regarded as the best individual available for the job.

No one has alleged that Justice Malik’s nomination would not have been justified on any merit-based criteria that may be adopted. She was not nominated because she was a woman but because she was regarded as the best individual for the job. 

It is generally acknowledged that there should be greater diversity in the superior judiciary. A judiciary – or any authority vested with power – which reflects in broad terms the composition of society provides all citizens with a greater sense of ownership and inspires confidence.

For the superior judiciary, there are two levels at which this problem can be addressed. First, in the composition of the appointing authority. Second, in the criteria to be adopted in making appointments.

The JCP is the constitutional body entrusted with appointment of judges. Since it is primarily composed of judges, it is male dominated. Currently, it has no female members. There is no prospect of any meaningful female representation in the near future with the current structure. The parliament should consider amendments to the constitution with a view to broadening the composition of the JCP. Suggestions have been made in a White Paper authored by four lawyers to include senior female lawyers in the JCP and to also consider inclusion of non-lawyers, like eminent academics and journalists.

Any constitutional amendment may also consider the fate of the Parliamentary Committee. Currently, it serves no purpose. If there is to be legislative oversight of or involvement in judicial appointments, this needs to be crafted in a manner consistent with judicial independence and competence. It may be that the JCP membership can be broadened to include parliamentarians so that a single commission considers the question of judicial appointments. In the United States, the whole senate votes on confirmation of appointments to the Supreme Court with the initial nomination being made by the president. In this way, both the Executive and the Legislature have a say in judicial appointments.

Where there is confidence in the appointing authority, many of the issues with appointments disappear. There are general criteria that you would expect any reasonable appointing authority to follow which can be adopted as a matter of practice. The best individual for the position should be selected keeping in mind broader goals of promotion of diversity and fair representation from all sections of society. The appointing authority should formally adopt and publicise any general principles that it will follow. Its proceedings should be open to the public and a transcript released in the interests of transparency as is the case with parliamentary debates.

Ultimately, any selection will have an element of subjectivity. That is why you need a diverse and qualified appointing authority. No mathematical formula is effective in evaluating candidates in this arena. For judges, for example, merit cannot properly be assessed by how quickly you decide cases or by the number of your decisions. Similarly, for lawyers, merit cannot be fairly assessed by how many of your cases get reported in law journals. A judge can give awful decisions quickly. A lawyer can do a terrible job in conducting cases which are reported. These are not proper yardsticks.

There is a danger that given our understandable fear of entrusting unfettered power to a decision making authority, we are moving too far to the other extreme: excessively circumscribed decision making. Not only does this lead to poor decisions, it results in judicial involvement in reviewing decisions. The more rules you have, the more judges get to interfere. At the end of the day, some decisions have to be left to the judgment of the decision maker.

The writer is an advocate of the Supreme Court of Pakistan.   ahmadhosain@icloud.com