“When making a decision of minor importance, I have always found it advantageous to consider all the pros and cons. In vital matters however…the decision should come from the unconscious, from somewhere within.”
– Sigmund Freud
According to Article 175A of the Constitution of Pakistan, appointments to the Supreme Court of Pakistan are conducted by a high-powered committee called the Judicial Commission of Pakistan (JCP) comprising 9 members, including the 5 senior most judges of the Supreme Court. In a nutshell, this means that an appointment can be finalized if all the judges who are part of the JCP are on the same page, while the decision of the remaining members would be inconsequential. However, this has not been the case for the past many months and, as a result, we are short of 5 judges in the Supreme Court (which means, around 30%). With an ever growing backlog of over 50,000 pending cases, it is a no-brainer that we need more judges, not less.
The last meeting of the JCP was held on 28th July, 2022 and ended in a stalemate, without even a vote. However, for the first time, an audio recording of the JCP meeting had been disclosed to the public, in relaxation of the rules, which gave access to the public regarding the working of the JCP, historically a process shrouded in secrecy and otherwise taking place behind closed doors.
At the moment, it is the sole prerogative of the Chief Justice of Pakistan (CJP) to select the candidate to be considered by the JCP, but there are no rules as to how a particular candidate will be selected by the CJP and, more importantly, the parameters around which a particular nominee will be evaluated by the JCP. The Constitution also does not provide clear guidelines in this regard. As far as Article 177 is concerned, a judge of the Supreme Court has to fulfill either of the two conditions:
- is a judge of a High Court for 5 years; or
- is an advocate of High Court for 15 years.
Barring these two requirements, the law is silent.
Beyond this criteria, we go into a territory of “unfettered discretion” which has been deprecated by the Supreme Court itself in other public sector appointments. Some have argued that the criteria for the appointment of a Supreme Court judge is so complex that it cannot be put into a straitjacket formula. Others have proposed to make well thought out rules, in the absence of which only the senior most judge of a High Court to be appointed to the Supreme Court (which is not a requirement of the law).
Before giving my two cents on a possible solution, I would like to highlight a few important details from the released audio of the JCP meeting:
- Most members of the JCP, unless they are from the same province, have neither met the nominee nor worked with the nominee in a professional capacity;
- Information gathered by the individual members of the JCP regarding the character and personality of the nominee is all hearsay;
- Most members have not stressed the seniority principle strictly and have wanted to see other eligible candidates, for instance in the case of Peshawar High Court;
- The convention regarding the unwritten provincial quota system is also a consideration; and
- There has been no prior informal discussion amongst JCP members regarding who should be nominated.
From the above, one thing is certain: we have crossed the Rubicon in terms of having yet another JCP meeting without properly structured rules. This is not a novelty in high-stakes public sector appointments as one can take a leaf from the working of the Central Selection Board (CSB) which promotes senior bureaucrats. The once unfettered discretion of the CSB has, in fact, been structured into a transparent process ironically after the judgments of superior courts. Justice Mansoor Ali Shah, while discussing the appointment process of CSB in 2013, stated the following:
“Discretion without a uniform yardstick or formula is loose jumble of haphazard human subjectivity, which is inescapably susceptible to error and indubitably arbitrary ex facie discriminatory, highly irrational and painfully illogical.”
The million-dollar question then is, can there be a process which is transparent, fair and effective, yet not rigid?
The starting point should be to address the elephant in the room i.e. the provincial quota convention. Should there even be one? Historically, out of 17 judges we have had 8 from Punjab, 5 from Sindh, 3 from Khyber Pakhtunkhwa and 1 from Balochistan. At the moment, there are 2 from Balochistan and no representation from Islamabad. Given the composition of the country and the kind of cases that come before the Supreme Court, it is important to have a well laid out provincial quota. To begin with, rules can be drawn up to codify the unwritten convention and a proper quota can be made from which names can be selected. There may also be a reserved seat for a senior lawyer for direct appointment to the Supreme Court (the Constitution allows it but this has never happened), though I have to admit, selecting a lawyer is even more difficult than selecting a High Court judge.
So what can be the parameters and pitfalls for structuring this discretion and making an objective criteria regarding the appointment of a High Court judge to the Supreme Court? The following suggestions come to mind:
a) All judges who have completed 5 years and are in the top 7 of the seniority list of a particular High Court must be considered and given marks;
- The benefit is that this reduces the chances of favoritism or selection of a candidate from the bottom of the seniority list.
- The ‘top 7’ are also part of the administrative committee of a High Court so the number is not random.
- This also takes away the discretion of the CJP in nominating judges for consideration.
- However, if a High Court judge is not appointed, he or she will continue to be considered as long as he or she is in the ‘top 7’.
b) The number of reported judgments (10 marks);
- The problem here is obvious: it should not always be about the quantity of reported judgments but the quality, though quantity is still an important consideration which cannot be ignored and has to be in the rules.
c) The number of cases decided, excluding connected cases (20 marks);
- This will determine the work ethic of a judge, as the requirement is to have extremely hard working judges.
d) Quality of judgments (10 marks);
e) The percentage of cases overruled and upheld by the Supreme Court (10 marks);
f) Integrity and temperament (10 marks);
- For a judge to survive this long in the system, he or she must have good integrity, but this needs to be assessed.
- Temperament is equally important. For a judge of the court of last resort, he or she must be kind, compassionate and willing to listen.
g) Interview (40 marks).
- Interview is key. Each member of the JCP must be given 10 minutes of uninterrupted time to question the nominee and individually score the nominee.
- Interviews have been the most effective, historically, in assessing the suitability of a candidate. One cannot imagine an appointment in a commercial entity without an interview.
- This gives JCP the opportunity to question the nominee, from legal acumen to political allegiance.
Finally, there should not be a vote. The total marks given by each member of the JCP must be added and the nominee with the highest score be selected. Consequently, if a position becomes vacant, a situation should not arise where the position cannot filled. A statistics-based approach also removes inherent human bias to a great extent and paves way for impartial, fair and unbiased opinions. Regardless of the criteria, some competent High Court judges may still not make it to the Supreme Court considering there are 145 High Court judges in the country and only 17 Supreme Court judges.
Having said that, we are currently facing an emergency situation. We need more than just 17 judges. The number has to increase. We even need ad hoc judges to reduce the mammoth task of addressing more than 50,000 pending cases. The system, which is on the verge of breakdown, cannot afford an impasse over the appointment of 5 judges.
Richard Wiseman in his book 59 Seconds: Think a Little, Change a Lot has aptly stated the following regarding complex decision making:
“Thinking too hard about an issue is, in many ways, as bad as making an instant choice. Instead, it is all a question of knowing what needs to be decided, then distracting your conscious mind and allowing your unconscious mind to work away.”
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.