Rethinking Elevation of Judges: Fate of an Idea Whose Time Has Come!

On the 19^th of May, 1964, the Republican Senator from Illinois (US), Everett McKinley Dirksen, showed his support for the Civil Rights Act 1964 in the following words:

“No army is stronger than an idea whose time has come.”

The same can be said for rethinking the idea of the elevation of judges in Pakistan – an idea whose time has (indeed) come.

My contention, or perhaps observation, for the arrival of time to reassess this mechanism is based on the reconsideration of the Judicial Commission of Pakistan to elevate Justice Ayesha Malik as a judge of the Supreme Court of Pakistan. Given that this is the second time this consideration has been made and provided that the Pakistan Bar Council has given directions to all other bars to oppose this recommendation, it is time to evaluate why the Judicial Commission of Pakistan is insistent regarding her nomination while bar councils have been opposing it so vehemently. In other words, it is time to rethink this process altogether.

To narrow it down, while admitting the risk of oversimplification, this controversy is a duel between two legal principles: seniority and merit. The former principle does have strong legal backing. In the Al-Jehad Trust case, it was laid down that the criterion for elevation (and thus appointment) of judges of the superior courts of Pakistan was to be based on the principle of “seniority”. Irrespective of the fact that the precedent had been violated on certain occasions, it still remained, as a matter of legal principle, the only criterion to be followed for such elevation. Those who stand in support of this principle argue against the elevation of Justice Ayesha Malik since she is not the senior most judge of the Lahore High Court. The principle of merit, on the contrary, relies on strong moral backing. It argues that merit is meant to and shall topple all other conditions. Provided that judges are tasked with adjudicating disputes, the best in doing so must be elevated. It is not that those who propose this principle stand in disregard of the law. They assert that since the principle of seniority has been violated in the past, the law stands silent on it. In this context, given the fact that Justice Ayesha Malik is highly competent and worthy, there is no moral impediment towards her elevation.

There are, indeed, other factors which bring their own crisp to the tussle. Justice Ayesha Malik is supposed to be the first woman to be a judge of the Supreme Court of Pakistan. Given the fact that Pakistan has waited long enough for the appointment of a woman to the Supreme Court bench, the urgency is felt across every institution. The decision of the Pakistan Bar Council to strike in protest, the Chief Justice of Pakistan’s retirement coming up in one month and the involvement of political personnel to build pressure on each side have made this issue of a unique nature. Notwithstanding anything contrary to the complexities of this issue and admitting that there is more to be discerned, it needs to be realized that this matter is also leading towards something else worth examining: an idea that we need to rethink this process from the basics and legislate upon it – an idea whose time has come and need felt. Henceforth, I will briefly outline what can be considered.

The concern in every process of appointment, elevation or even selection is not very diverse. The aim, in simple words, is to select the best candidate by using the best possible objective criterion. This upholds the legitimacy of a judge and allows justice to be delivered amicably. Nonetheless, it is easier said than done. In 2013, Baçak Çah, Anne Koch and Nicola Bruch produced a report on the factors leading to the social legitimacy of judges. The report was quoted and summarized by David Kosař in his inquiry on the selection of judges at the European Court of Human Rights in Strasbourg. The report showed several ‘normative’ and ‘managerial’ factors relevant towards giving legitimacy to judges. Among the normative factors, the most relevant ones (in descending order of importance) were the following:

• Transformative quality;
• Intervention;
• Balance between law and politics;
• Living instrument; and
• Effective human rights protection.

Among the managerial factors, the most relevant ones (in descending order of importance) were the following:

• Length of proceedings;
• Judges’ qualification, experience, knowledge of domestic fact/law;
• Enforcement;
• Case-law coherence; and others.

The intricacies of the report are lengthy and the limitation of words do not permit us to go to such lengths. However, a few pointers may be elaborated succinctly. First, the elevation of the judges is a procedure which is not as simplistic as we have limited it to the principle of seniority. The report shows a series of other factors which can be considered along with the seniority principle. Secondly, the seniority principle is also not something to be disregarded so easily. Note that among the managerial factors, the ‘length of proceedings’ seems to be one of the most important factors to determine the legitimacy of a judge – making her or him worthy of elevation. Finally, the report shows that there are so many factors which we are overlooking in this process. Given that we now have an opportunity, why don’t we properly legislate upon the matter?

Controversies are opportunities. They allow us to think about the issues we wouldn’t otherwise consider. Justice Ayesha Malik has recently been nominated as a judge of the Supreme Court of Pakistan, however, the controversy surrounding the nomination has given us an opportunity to think about this process anew. We should, perhaps, admit from the very outset that whatever criteria we come up with can never be completely transparent or objective – human beings are humans after all and only capable of making things subjective. Nonetheless, we should not allow this opportunity to go to waste, for it is an opportunity to develop a more transparent principle of law on the elevation of judges and formulate a law whose time has verily come.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.