Structured discretion, unstructured courts

Ali Uzair Bhandari
Friday, Aug 05, 2022

The writer is a lawyer.

The principle that “discretion must be structured” is a maxim often repeated by our Supreme Court. But that maxim appears not to apply to the chief justice of Pakistan.

There has been a lot of debate in recent times regarding the judicial appointment process in Pakistan, and in particular appointments to the Supreme Court. This is a process which, to date and despite efforts, revolves almost exclusively around the discretion of the CJP.

Prior to the passage of the 18th Amendment in 2010, the process of appointments to the Supreme Court was simple. The CJP would make recommendations for appointments to the president which recommendations, as per the 1996 Judges’ case, were ordinarily binding on the president. The rationale for vesting such discretion in the CJP (as per the 2002 Judges case) was that “being the paterfamilias of the judiciary”, the CJP was “the best judge to ascertain and gauge the fitness and suitability of the judges working in the high court for appointment as judges of the Supreme Court.”

There are over a hundred high court judges across Pakistan. It is highly unlikely that all of them were personally known to every CJP. Giving the chief justice complete discretion thus all but ensured arbitrary appointments based on favouritism and personal prejudices. Indeed, the fact that absolute authority throughout the entire appointment process lay with just one person should have been reason enough for the entire process to be revised.

The 18th Amendment tried to make the appointment process less arbitrary by adding Article 175-A to the constitution. As later modified by the 19th Amendment, a detailed procedure for appointment of judges to the superior courts was laid down which started with a Judicial Commission, headed by the CJP and comprising senior judges, the attorney general and the law minister. The names approved by a majority of the Commission were to be referred to a Parliamentary Committee, comprising opposition and treasury members in equal numbers. The Parliamentary Committee was to then confirm or reject the nominations of the Judicial Commission, forwarding the confirmed names to the prime minister, and subsequently the president, for appointment. This way, the power to appoint judges was to be taken away from just one person and instead vested across multiple individuals and institutions.

That promised day, however, never arrived. Instead, even the new process was structured so as to maximize the powers of the CJP. This was done primarily through the Judicial Commission of Pakistan Rules, 2010 which provided that only the CJP could nominate individuals. At the same time, the Rules made no mention as to how these nominations were to be made and on the basis of what criteria.

More importantly, the Parliamentary Committee was rendered redundant by the Supreme Court. This was done in the Munir Bhatti case, which held that the Parliamentary Committee could not set aside the Judicial Commission’s findings as to the competence of a nominee and that the decisions of the Parliamentary Committee were justiciable, meaning that they could be challenged in, and set aside by, a court.

Finally, while answering a presidential reference in 2013 regarding the scope of the president’s powers under Article 175-A, the Supreme Court reiterated its view in the 2002 Judges’ case by holding that the prime minister and the president were bound by the recommendations made to them and by holding the CJP to be “the best person to practically/technically evaluate a person’s caliber to be nominated as a judge”.

The net result of these developments has been that everyone except for the Judicial Commission has been made nearly irrelevant in the entire process and even the Judicial Commission can only consider names approved by the CJP. How the CJP is to decide those names has been left entirely to the CJP’s discretion.

Transparency and ‘structuring of discretion’ are principles that we have learnt from the Supreme Court itself. These are principles the Supreme Court requires all other institutions to respect. Why should not these principles apply to the Supreme Court itself? And if so, how?

One alternative suggested by many is to make appointments to the Supreme Court purely based on seniority, at least till such time that no concrete reforms are put in place. I disagree. There is no such requirement in the Constitution except in relation to the appointment of the CJP himself. Consequently all other appointments are not required to be made on the basis of seniority. Furthermore, high court judges are not the only ones eligible for appointment to the Supreme Court: our constitution provides that lawyers can be elevated directly from the bar.

Another suggestion is for each member of the JCP to suggest names. This is a proposition I agree with. Each member of the JCP could nominate one person per vacancy, and only those individuals nominated by at least two members of the JCP would then be considered by the JCP. This solves half the problem in that it takes away the exclusive discretion of the CJP. The other half of the problem – the basis on which the initial names are to be shortlisted – remains.

Several suggestions have been made in this regard and include a quota-based system proposed in a white-paper submitted to the JCP. This system suggests a percentage of slots reserved for women and minorities and nominations based on number of reported judgments, and quality of reported judgments.

While I think the above proposal has merit, there are other factors which need to be considered. For example, one aspect which requires consideration is the type of judge required on the bench. Disputes before the Supreme Court range from criminal matters to civil disputes, from constitutional issues to purely commercial disputes. However, not all judges of the Supreme Court are equally experienced in all matters. Thus, while considering nominations, the JCP should also take into account the particular expertise required.

I am a very junior member of the bar and, as per tradition, am supposed to be seen but not heard. However, I write this because I have been so very disappointed by the events of the past few weeks and the stalemate amongst members of the Judicial Commission. The Supreme Court currently has over 50,000 pending cases. Within the next few weeks, the Supreme Court will have five vacancies out of 17 seats, nearly one-third of its total capacity. There are no signs of an emerging consensus that will allow these seats to be filled. But this is a stalemate our justice system can ill-afford.

Twitter: @aubhandari