The paper which explores how more transparency in judicial nominations may promote diversity and equality of opportunity in judiciary for a more inter-sectional representation at the Bench and why such diversity is not only compatible with the notion of independence of the judiciary but also a desirable objective for rule of law in any civilized and democratic state is authored by Nida Usman Chaudhry, Founder of Women in Law Initiative Pakistan and Sara Raza, a final year LL.B student from LUMS.
They observed that,
“The current data of sitting judges of the High Courts in Pakistan shows that, out of 116 judges altogether, only 5 are women that indicates that only 4.3% of women make up the senior judiciary in Pakistan. Gender, language and ethnicity, together with religion, do not figure among the formal criteria for the appointment of judges. The only explicit provision for the appointment of female judges can be found in the Family Courts Act, 1964 as amended by the West Pakistan Family Courts (Amendment) Act, 1994. Moreover, till date no woman has made it to the Supreme Court of Pakistan.”
In addition to the marginalization and lack of representation of women, they noted that the,
“benches also do not currently adequately represent minorities and those who are differently-abled. The official sources currently do not show data divided into percentage of minorities and differently-abled which makes accessing this information difficult but an examination of the list of the names of the sitting judges available on the websites shows that male members of the majority faith and ethnicity appear to dominate the Benches.”
They attributed this lack of diversity on senior benches to the lack of transparency and of an objective benchmark for the nomination of candidates. The process of nominating judges for the High Court and the Supreme Court is currently contained in Articles 193 and 177 of the Constitution respectively, which only lists down professional qualifications required to be eligible to be considered. The authors argue that the absence of any direction related to personal attributes or competence and to a statement as to equality and diversity to ensure an inter- sectional representation on the Bench, makes it an arbitrary exercise of power which is not compatible with rule of law. The law currently gives the Chief Justice powers to nominate and appoint senior judges without any objective directions as to attributes or commitments to diversity and equality. This position was further strengthened by two decisions of the Supreme Court, the Munir Hussain Bhatti v Federation of Pakistan and Presidential Reference No. 01 of 2012, which rendered the role of the parliamentary committee redundant and reaffirmed the supremacy of the judicial commission and while,
‘It might be said that the Chief Justice is just one member of the eleven-member JC, and accordingly has one vote. That is unquestionably true in theory. However, after the introduction of the Judicial Commission Pakistan Rules 2010, it is only the Chief Justice who can initiate or propose a name for appointment, and the rest can either accept or reject it.’ as stated by Saroop Ijaz in his article titled, ‘Judicial Appointments in Pakistan: Coming Full Circle’ in 2013. Accordingly, the nominations for appointment of the senior judiciary are primarily concentrated in the hands of the Chief Justice of Pakistan.
This was however, not always the case and the authors trace the historic development of the judicial system in the country to highlight the kind of attributes other than professional qualifications that have time and again been considered relevant for nominations on similar positions from pre-partition Mughal era days to post-British era and modern-day Pakistan. They also draw heavily on leading global trends and principles, such as the Latimer Principles that continue to inform this area and enhance the credibility of the institution in eyes of the public.
They conclude by making the following recommendations:
The Women in Law Initiative, Pakistan,
- Noting that our judiciary has an obligation to preserve, protect and respect the Constitution,
- Realizing that the judiciary is the state organ responsible to adjudicate on matters affecting lives, rights, properties, freedoms and duties of public,
- Mindful of global trends and practices towards promotion and respect for human rights and fundamental freedoms without any discrimination,
- Acknowledging the UNGA Basic Principles on the Independence of Judiciary 1985 which recognize the importance of selecting people for judicial office on basis of attributes such as integrity, appropriate training, qualifications and non-discrimination,
- Asserting the importance of a transparent process for institution of judiciary as a whole,
- Noting that an arbitrary process of nominations does not sit well with notions of justice,
rule of law, democracy, equality and fairness,
- Reiterating the importance of intersectional representation in judiciary,
- Mindful of rules of natural justice, fair representation, and need for diversity in the judiciary,
- Recalling Commonwealth Latimer House Principles 2003 which state that judicial appointments should be on the basis of clearly defined criteria by a publicly declared process to ensure equality of opportunity, merit and consideration of progressive attainment of gender equity,
- Understanding the institutional, social and cultural barriers that have historically contributed to the challenges in the advancement of marginalized classes within the profession,
- Calling for affirmative action to address the social, structural and institutional imbalances that put women and other marginalized classes at a disadvantage by creating an unequal playing field,
- For the overall greater understanding among the candidates as well as the public of the criteria to fulfill in order for being considered for nomination and appointment and in the interest of greater certainty, consistency, transparency, objectivity, merit, fairness and other general principles of law and in light of Pakistan’s international commitments under Sustainable Development Goals and various other human rights treaties,
- Now therefore, make the following four recommendations:
- Constitutional Reform
A Constitutional Amendment Bill along the lines of the UK Constitutional Reform Act 2005 be introduced to amend Articles 175A of the Constitution of Pakistan 1973 dealing with the judicial appointments process as follows:
‘175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.-
(8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be.
[8A(i)] The Commission, in performing its functions of making such a nomination, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.
[8A(iii)] A person must not be selected unless the selecting body is satisfied that he is of good character and reputation.
[8A(iv)] In making the nomination, the Commission must have regard to the following factors amongst others;
- qualifications and standing required under Articles 177 and 193
- recognized scholarship, legal acumen and known competence in field of law [and fiqh (for federal shariat court)]
- high integrity
- past record, criminal convictions or other delinquent behaviour
- NTN number, consistency of filing tax returns and compliance with other financial laws and regulations’
- Quota/Reserved Seats
Introduction of a 33% quota for marginalized classes as a corrective measure to enhance diversity in the appointment of senior judiciary by introducing reserve seats to be filled by women, minorities and differently-abled though they may be nominated and appointed on these seats in accordance with the provisions of Article 175A of the Constitution of Pakistan 1973 and Rule 3 of the Judicial Commission of Pakistan Rules 2010.
- Consultative Sessions with Judicial Commission
Ministry of Law and Justice to hold a comprehensive consultative session with members of the Judicial Commission of Pakistan and encourage them to voluntarily correct the gender and racial imbalance on the bench. Inspiration may be drawn from Ontario’s Judicial Appointments Advisory Committee, where one of the first responsibilities that the committee delved into was of writing a letter to the 1200 female lawyers in the province, asking them to consider applying to become a judge. This was a course of action which resulted in Ontario’s 40 percent appointed judges being women from the years 1990 to 1992. If the Judicial Commission in Pakistan takes over the responsibility of calling all women and other marginalized persons practicing law in Pakistan to apply for vacancies in senior judiciary, it may be viewed as a positive sign and an open invitation to a possibility of being accepted on the bench. Ultimately, it is the actors from within the judiciary that will have to play a central role in rectifying past polarity and disproportionate representation on the bench.
- Gender Sensitivity Workshops
The Ministry may also encourage gender sensitivity workshops for members of the Judicial Commission through Federal Judicial Academy (FJA).