The process of judicial appointments in Pakistan has long been about establishing the supremacy and the independence of one institution over the other in what has often been described as the quest for judicial independence from undue political influence. So much has this one factor been of concern that it has been jealously and religiously guarded by the judiciary at times at the expense of fundamental rights and to an extent that any reforms that attempted to envisage a two-forum process during the passage of the 18th amendment were laid to rest through decisive judgements of the Supreme Court (SC) in Munir Hussain Bhatti v Federation of Pakistan PLD 2011 SC 407, that reduced the role of the Parliamentary Committee (PC), the other forum, to mere rubber-stamping, establishing in unambiguous words that the rejection of the nominees by the PC would have to be for very strong reasons which were justiciable i.e. they were ultimately a matter for the court to determine.
In doing so, the SC reserved for Judicial Commission of Pakistan (JCP), which is composed of Chief Justice of Pakistan (CJP), senior judges, provincial and/or federal law minister, senior advocates of SC and, in case of appointments for judges in the High Court (HC), also an advocate nominated by the provincial bar council with no less than 15 years practice, the final say in nominating the judges of superior courts and Federal Shariat Court (FSC). On what principles and grounds, that no one knows!
The only criterion for eligibility of judges mentioned in the Constitution itself is found in Articles 177 for the SC and 193 for the HC which only speak of citizenship and years of professional experience i.e. the number of years of practice or service in the profession. However, there is no direction related to any other personal attributes or competence and no statement as to equality and diversity to ensure an inter-sectional representation at the Bench.
In a bid to avoid multiplicity of list of nominations, Rule 3 (2) of the Judicial Commission of Pakistan Rules 2010 states that against each vacancy for the appointment of a judge in a High Court, the nomination of a candidate must move from the Chief Justice of the concerned High Court where after, the ‘capability’ of the nominees proposed by the Chief Justice is to be decided by a thirteen-member body called the Judicial Commission of Pakistan.
The fact that the nominations must be initiated by the Chief Justice himself, places considerable discretion in the hands of one person as no transparent or objective criteria as to attributes, integrity, competence or other principles has been spelled out on the basis of which nominations are to be made. Even though, the JCP has been held to be ‘best suited’ to determine the calibre, competence, legal acumen and overall suitability of a person for appointment as a judge in the superior courts in the case of High Court Bar Association, Hyderabad v Federation of Pakistan (2016 CLC 25) but that stage comes after the initial nomination has been made by the Chief Justice of the respective High Court, who appears to have complete and absolute discretion in initiating the nomination.
Even so, what factors the JCP ultimately does or does not take into account and how they arrive at their decisions as regards the capability and suitability of a nominee remain shrouded mainly in secrecy.
The judiciary’s relentless quest to secure and maintain its independence as regards judicial appointments and to keep them free from political interference are to be understood in the pre 18th amendment context that envisaged a pivotal role of the President in the appointment of senior judiciary in Pakistan. The SC however, in order to rightly maintain this separation of power effectively rendered the executive discretion in judicial appointments ineffectual in cases such as Al Jehad Trust v Federation of Pakistan (PLD 1996 SC 324). After the 18th amendment, a two-forum process was established via Article 175-A of the Constitution of Pakistan in which a nomination initiated by the Chief Justice will be forwarded to the JCP and thereof, to a Parliamentary Committee established under A175-A (9) of the Constitution.
However, the role of PC as the other forum was similarly rendered ineffective in post 18th amendment cases, as discussed above, establishing that the ultimate arbiters of judicial nominations and appointments would be the judges themselves. This was also seen reflected in the National Judicial Policy 2009, spearheaded by the then re-instated CJP, Ch. Muhammad Iftikhar, where it was stated that, ‘The key features of the National Judicial Policy are strengthening the independence of the judiciary by its separation from the executive.
However, it seems that perhaps ‘independence’ has been interpreted to mean ‘unfettered’ freedom’ as opposed to ‘separation from interference’ by other state organs. Separation of powers does not mean that rules of natural justice, fundamental rights and general principles of law such as transparency and objectivity do not apply. Nor does it mean that arbitrary decisions can be made, especially for people who are going to be the arbiters of disputes that affect the general public. The quest for maintaining separation of powers and independence must not be confused or equated with unfettered power. The judges must work within the constitutional framework of fundamental rights and any powers to devise their own rules and procedures must be in accordance with the same constitutional framework of fundamental rights that calls for equality and non-discrimination.
Being a constitutional body, the JCP is under an obligation to ensure gender diversity in accordance with the constitutional provisions and Pakistan’s international commitments. The Constitution under Article 25 read with Article 26, guarantees equality to all citizens of Pakistan, outlaws discrimination on basis of sex and places a positive obligation on the state to take affirmative action for women and children. The constitution further guarantees equal access to public places and equality of employment in the public and private sectors under Article 27, while Article 34 further directs the state to ensure full participation of women in all spheres of national life and Article 37(f) obligated the state to ‘enable the people of different areas, through education, training, agricultural and industrial development and other methods to participate fully in all forms of national activities, including employment in the service of Pakistan’.
The Attorney General in the March 1998 Conference also declared that, ‘in order to effectively enforce the rule of law in any State, its judiciary has to be an emblem of neutrality, stability and continuity.’
In absence of any clear guidelines or criteria for judicial nominations, the exercise remains largely inscrutable and it becomes difficult to ascertain what ‘merit’ means and what qualities, skills, characteristics and expertise may be required for a lawyer to be considered for judicial nomination and which may have the impact of undermining the public's trust in the institution of justice.
As experience from previous years show, the range of judicial nominations in Pakistan have been quite narrow and not in line with principles of inclusion, diversity and equality of opportunity therefore, there is a need to revisit the judicial nominations process in line with agreed best practices and global trends as well as in line with Pakistan’s commitments under affirmative action for parity, sustainable development goals and fundamental rights by making it more inclusive, clear and transparent.
This proposition appears to be supported by a senior member of Pakistan Bar Council (PBC), Mr. Raheel Kamran Sheikh who agrees that transparency in the process of judges’ appointment or elevation can only be ensured if the system is open and transparent and based on objective criteria, which should be by and large accepted by legal fraternity. He also points out that the PBC has passed several resolutions demanding amendments to the existing Judicial Commission (JC) rules as these don’t outline any objective criteria such as number of reported cases, number of total cases conducted, juristic ability and diversity of the candidates, besides integrity and good temperament.
He says if an objective criterion is laid down in the JC rules for the exercise of discretion by the Chief Justices of the High Courts, not only will it help the commission to function transparently but the bar representatives in the commission, on the basis of feedback from bar councils and associations, will also be in a position to object to cases of obvious discrimination in ignoring meritorious lawyers for the slots. Incidentally, Mr. Sheikh is one of the 16 men whose name has recently been forwarded as a nominee to the JCP for appointment as a judge in the Lahore High Court.
In a recent meeting conducted by the JCP some of these recommendations appear to have been accepted. Reportedly, the JCP will reconvene on 12th January 2021 to review the credentials of the 16 men who have been nominated by the Chief. This will be done by asking for more information about their reported cases in the SC (which is not a constitutional requirement but one that JCP has devised under the power to make its own rules) as well as copies of the ten best pleadings in the HC by the nominees. Other recommendations that are reported to have been considered include the need to ensure that there are no discrepancies in the financial records of nominees and that unsigned intelligence reports do not get placed for consideration before the JCP in a bid to avoid external influence over the JCP re candidates.
Prior to this, former Chief Justice of LHC, Justice Mansoor Ali Shah as he then was, is also reported to have called for pro-formas from as many as 250 intending lawyers, who were required to submit their cases’ details, which were scrutinized in a somewhat objective manner and some of the best qualified persons were appointed as a result. While this was an encouraging step forward, it is still not adequate to reflect and address the larger gender dynamics at play in the legal profession that hold women back. The system of appointments, even when based on professional history of a candidate overlooks the day-today barriers that push women into invisibility, despite their significant contributions to the cases that their male counterparts argue in courtrooms or which get reported without due acknowledgment of them as co-counsels in the matter. The JCP may be asking itself several important questions in its attempt to be more transparent and effective, but it is certainly still not seeing itself as responsible to ensure gender and diversity on the bench in line with fundamental principles in the constitution of Pakistan. This oversight will continue to perpetuate existing inequalities in relation to representation at the bench which stands at 5% for women as of now in the high courts and 0% in the SC in our 73-year, long, celebrated history.
Globally, the consensus that appears to be emerging is that in order to create conditions under which justice is seen to be promoting and encouraging respect for human rights and fundamental freedoms without any discrimination, it is imperative that the judiciary, that is the body responsible to adjudicate on matters affecting the lives, rights, properties, freedoms and duties of people, would itself embody those rights and freedoms in the way that it operates so that a sense of public confidence in the justice system is promoted.
In other words, the independence of the judiciary is the hallmark of every civilized nation and democratic state. This is not only essential to the rule of law but is necessary for the fair and impartial resolution of disputes and while an independent and impartial judiciary is essential for the protection of human rights and for ensuring that there is no discrimination in the administration of justice; it is equally important to ensure that the judicial nominations process is transparent, objective and clear in order to sustain public confidence in the judiciary as well as to ensure that the legal profession upholds its basic tenets of equality and justice.
An objective nominations and appointments criteria is therefore, desirable because, the fair and equal representation of people from varying income brackets, ethnicities and adequate judicial training and socialization to not reinforce dominant or conservative attitudes prevailing in the judiciary will only result in judicial neutrality that can be achieved by developing appointment mechanisms which encourage inclusivity and diversity on the bench.
As early on as 1985, the United Nations General Assembly (UNGA) adopted the Basic Principles on the Independence of Judiciary, which recognize the importance of selecting people for judicial office on basis of attributes such as ‘integrity’ coupled with ‘appropriate training’ and ‘qualifications’ in law whilst also stating that there shall be no discrimination in such selections on basis of race, color, sex, religion etc. among others. While judicial appointment mechanisms shall safeguard selection against any improper motives, it is highly imperative to understand that a requirement of a candidate to be a national of the country concerned is not to be considered a discriminatory criteria for appointment. Judges in Pakistan have a guaranteed tenure until they reach the mandatory retirement age of 65 years, any appointment or elevation, according to the Basic Principles, shall be based on objective factors, in particular ability, integrity, and experience.
Furthermore, some constitutions specify an express commitment to gender and racial balance in the judiciary. The South African Constitution, for example, states that, ‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’
What this indicates is that a judicial council can be constitutionally required to take a proactive role in the achievement of gender balance in judicial office.
According to the Commonwealth Latimer House Principles adopted in 2003, which provide guidance on the separation of powers, judges should be appointed ‘on the basis of clearly defined criteria and by a publicly declared process’ so as to convey a fundamental commitment to transparency. At a minimum, the public must be informed of the characteristics that qualify persons for judicial office and the procedures that are followed when an individual applies, or is considered for appointment.
The Principles further make clear that the criteria for judicial office should be informed by the fundamental objectives of equality of opportunity, appointment on merit and the need to address gender inequity and other historic factors of discrimination in the context of a particular society.
The Latimer Principles suggest inter alia that, judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process and in particular that, the process should ensure,
(a) Equality of opportunity for all who are eligible for judicial office;
(b) Appointment on merit; and
(c) That appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination.
In view of similar objectives, the UK Constitutional Reform Act of 2005 dramatically changed the role of the Lord Chancellor and introduced an independent Judicial Appointments Commission (“JAC”), responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice. The Judicial Appointments Commission ensures that merit remains the sole criterion for appointment and the appointments system is modern, open and transparent. It selects candidates for judicial office on merit, through fair and open competition, from the widest range of eligible candidates. The JAC was set up in order to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable. The law allows the commission to prefer one person over the other for the purpose of increasing diversity where the two are of equal merit. The commission is further mandated to have regard to the need to encourage diversity in the range of persons available for selection for appointments.
The 2005 Act further introduced a Judicial Appointments and Conduct Ombudsman, responsible for investigating and making recommendations concerning complaints about the judicial appointments process, and the handling of judicial conduct complaints within the scope of the Constitutional Reform Act.
In an interview with Lady Hale, the first female President of the Supreme Court of the UK, was observed pointing out the importance of having a balanced gender representation on the bench and calls for more women to with time become part of the highest court. This perseverance of gender equality within Hale’s constitutional restraints is explained in the following words, ‘My own view is up to a quarter [on the UK supreme court] is an important breakthrough but that there’s no right number of justices of either gender. An ideal balance would be at least 60/40 either way. And so we still have a little way to go towards that.’
She also goes on to propose that she does not stand in favour of positive discrimination especially because ‘no one wants to feel they have got the job in any way other than on their own merits,’ and that if better outreach efforts are made, candidates applying for judicial office will be encouraged further.
Under Lady Justice Hallett, a Judicial Diversity Committee was formed in the UK in 2013. The Committee has each year pursued more initiatives to explore what might be done to accelerate progress. It has been strongly supported by judges from all backgrounds across the courts and tribunals in England and Wales.
It has worked with the Judicial Appointments Commission, universities and professional bodies to host evening outreach events. The primary purpose of these events is to attract suitably qualified lawyers from groups currently under-represented in the judiciary and to enable them to explore the possibility of a future judicial career. The events provide a panel of varied speakers and an opportunity to meet serving judges. They may sow the seed of wanting to join the judiciary years ahead, when they are ready to apply.
Since 2015, the committee has run increasingly popular application workshops aimed at under-represented groups. These form part of a positive action programme which is intended to help candidates make stronger applications; but once they have completed the programme, they are expected to compete on merit with the other applicants. To attract more solicitors and legal academics to the senior judiciary, they have extended the eligibility of the High Court programme to those without litigation experience.
Between 2013 and 2017, the proportion of female judges in the tribunals has increased from 43% to 45%, and the percentage of Black Asian & Minority Ethnic (BAME) judges has increased from 9% to 10%. However, the proportion of judges with a non-barrister background in the tribunals decreased from 67% to 66% between 2015 and 2017.
As per the recent statistics published by the committee on its website on 11 July 2019, showing the figures as at 1 April 2019, 32% of judges in the courts and 46% of tribunal judges were women. 51% of non-legal members of tribunals were women. Around half of judges in the court aged under 50 are women. Women outnumber males among tribunal judges aged 40-49 (54% women) and 50-59 (52% women). 23% of Judges in the Court of Appeal and 27% in the High Court were women. 42% of Upper Tribunal Judges were women. Since 2014 there has been a 7-percentage point increase in women’s representation among judges in the court. Of the 143 judges in the court that were appointed to a senior judicial role in 2018/19, 45% were women. 33% of judges in the court and 63% of tribunal judges were from non-barrister backgrounds (solicitor, CILEX or other). Representation by judges in the court decreased 3 percentage points since 2014 and for tribunal judges decreased by 5 percentage points over the same period. The proportion of BAME Judges was higher in those joining the judiciary than in those leaving the judiciary. 11% of new judges in the court were BAME compared to 6% of those leaving, and 12% of new tribunal judges were BAME compared to 5% of those leaving. BAME representation among judges in the court was generally lower than the general population, but in those aged 50 to 59 it was similar to general population at this age (10% compared to 11%), while BAME representation among tribunal judges was similar or higher than that of the general population at all age bands from 40 and over. Non-legal members have considerably higher BAME representation than that of the general population at all age groups. More than half of magistrates were women (56%). 12% of magistrates declared themselves as BAME. There were very few magistrates aged under 40 (5%) compared with 52% of magistrates who were aged 60 or over.
Perhaps, in a country like Pakistan where structural inequalities and social barriers have created deep rooted imbalances in terms of access to opportunities among men and women and among marginalized and privileged classes, what is required is also not only a passive injunction to avoid discrimination but rather, more proactive affirmative actions, similar to the ones in UK that address the glass ceilings that enable the discrepancies to persist.
This would be in line with the fundamental rights chapter in the Constitution of Pakistan, 1973 as well, which under Article 25, not only calls for equality of all citizens before the law but empowers the state to make any special provision for protection of women and children. This is not to suggest that women and members of minority communities are less able and therefore, need to be included but only to highlight that the process presently being pursued is likely to go against the spirit of equality, inclusion, diversity and equity in the absence of clear guidelines and transparency.
Another benefit of devising a clear criterion for judicial nominations that is mindful of need for diverse and inclusive representation at the bench via a constitutional amendment is that it will eliminate the historical ‘tug of war’ between the two organs of the state and bring the process in the realm of the constitutional framework that governs all.