What could have been a historic moment in the history of Pakistan was lost to politics of deflection by the Bar and the placement of arbitrary power for the process of judicial appointments in the hands of the Chief Justice(s) and the members of the Judicial Commission of Pakistan (JCP) on September 9, 2021, when the possibility of Judicial Commission of Pakistan (JCP appointing its first-ever female to the apex court in the 74 years since Pakistan’s independence failed to achieve the requisite majority for Justice Ayesha A. Malik’s nomination as a judge of the Supreme Court. As a result, Pakistan to date has had no female representation or voice at the highest forum of justice in the country and remains the only country in the region to hold this unfortunate record.

Given that the courts invariably deal with matters of public policy and adjudicate on fundamental rights that are to be accessed by the most marginalised groups, communities, and persons, including women and minorities, it is vital for there to be more inclusion, transparency, and representation to promote access to justice and build public confidence and trust in the justice system of the country.

What transpired on September 9, however, must be viewed in the context of the historical issues surrounding the judicial nominations and appointments process, the rather unhelpful digression into the seniority versus merit, junior versus senior debate, and the overall state of representation of women and minorities in the justice sector. The larger socio-political concerns and overarching considerations of patriarchal structures can also not be divorced from the controversy the system and its stakeholders find themselves in.

Every few years, the question of judicial appointments goes through a similar cycle of division and deflection and is placed within the larger political context of its time. Prior to the 18th Amendment, the process of judicial nominations was centered around the recommendation of a panel by the Chief Justice to the president who selected a suitable candidate from therein. Even though the president had immense discretion to select a candidate from the panel, the central role, however, remained of the Chief Justice of a given court who alone had the power to recommend the panel up to the president for such appointments. This was further cemented in the Al-Jehad Trust Case 1996 in which the courts held that the recommendations of the Chief Justice would ordinarily be binding on the president, except where the president departed from the recommendations, in which case the reasons for his decision would be justiciable. The executive discretion of the president was, therefore, curtailed to a point where it was rendered practically ineffectual. This was done on the grounds of maintaining the independence of the judiciary from political influence.

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After the 18th Amendment to the Constitution of Pakistan, the process for appointments of the higher judiciary was further amended and appointments via a Judicial Commission plus Parliamentary Committee was envisaged instead. The Commission, it was believed, would have a wider composition and representation of stakeholders from both Bench and Bar, including ex-officio members such as the Attorney General of Pakistan, Federal Minister for Law and Justice, senior judges, former judges, and senior advocate of the Supreme Court nominated by the Pakistan Bar Council to promote greater consensus among the stakeholders within the legal profession.  However, no criteria or principles were formulated to base the nominations on. Instead, Rule 3 of Judicial Commission of Pakistan Rules, 2010, placed the power to initiate nominations for consideration by the JCP in the hands of the Chief Justice of the respective court in what is critiqued to be an absolute discretion devoid of any content and objective standards making the entire exercise an arbitrary and non-transparent exercise of power. Even the deliberations within the JCP and the eventual reasons of decision for accepting or rejecting a given nominee are not disclosed.

Over the years, this lack of transparency in the process on the whole and arbitrary power to initiate nominations has resulted in increased speculation and tension between the Bench and the Bar, especially within the circles that find themselves underrepresented within the current structure and system.

The calls for greater democratisation of the process once again became louder and relevant when Justice Muhammad Ali Mazhar, the then judge of the Sindh High Court, was nominated for appointment as a judge of the Supreme Court in July 2021. Being fifth in seniority, the assertions for ‘overlooking’ the senior-most judges, i.e. the then Chief Justice of the Sindh High Court, Justice Ahmed Sheikh, came to the fore by the Sindh Bar. Whilst critiquing the process as arbitrary and calling for its reform, they also persisted in demanding that seniority be applied as an interim measure until an objective criterion was formulated. Implications of ethnic tensions were also raised as was the possibility of judicial engineering for political engineering, which led to a massive and organised campaign of the bar against the JCP. The situation on the ground became more complicated when the Chief Justice of Pakistan put forth the name of a female judge, fourth in seniority from the Lahore High Court, for appointment as a judge of the Supreme Court. It was alleged that her gender was being used to neutralise the sentiment against the appointment of junior judges and to justify the earlier nomination of the then Justice Ali Mazhar of Sindh High Court, which was being resisted.

Several distinct issues appear to have been conflated, which is what led to one of the most intensive and intellectually vigorous legal debates within the community in years. Several notable scholars, and senior lawyers including Salman Akram Raja, Feisal Naqvi, Salahuddin Ahmed, Hamid Khan, and Justice (R) Nasira Iqbal, engaged with this debate in public and shared their respective and divided opinions on the matter.

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The division appeared to be more in relation to specific strategies and interim solutions that the Bar had proposed re-adopting the seniority principle as opposed to the actual need for reform in the process on which there was largely a consensus. Most stakeholders — even with an alternative point of view — agreed that the arbitrary process needs to be retired in favour of greater transparency but disagreed that the seniority principle is that measure of transparency even in the interim. They based this on the grounds that there was no seniority principle that was being violated, to begin with, because the Constitution under Articles 177 and 193 and the Supreme Court judgement PLD 2002 939 SC makes no reference to the right of senior-most judge for such nominations. The appointments to the Supreme Court are in any case to be viewed as fresh appointments and not as ‘elevations’ — therefore, the question of continuing on basis of age and seniority does not arise. They were also of the view that while the process needed reforms to promote transparency and representation, the seniority principle would still not be the guarantee of representation or inclusion. They highlighted the dangers of entrenching seniority as a principle as that would make ‘elevation’ to the Supreme Court a matter of right for senior-most judges which, once established, would be very difficult to reform in favour of inclusion and representation at the Bench. In this way, insistence on seniority could self-defeat the entire ethos and momentum for actual reforms that were supposed to be based on the objective of achieving greater transparency and representation.

The bar eventually organised to create pressure on the JCP and held several meetings to adopt a collective way forward to challenge the arbitrary exercise of power and to insist the stakeholders work towards developing the criteria for nominations. Strangely, they also held a primarily all-male lawyers convention in Karachi in August to collectively oppose the existing nominees even though there was no irregularity as they had been nominated in line with the existing process in place at the time.

Justice Ali Mazhar, fifth in seniority, was nevertheless appointed as a judge of the Supreme Court. Justice Ayesha A. Malik’s nomination, fourth in seniority, however, could not be so approved as the JCP also remained divided.

This dichotomy further brought to fore the need for developing the criteria for judicial nominations as Justice Ayesha Malik’s loss was pinned on the unfettered discretion of the JCP to appoint or not to appoint judges as per their whims in absence of clearly defined and scrutable criteria.

The issue, however, was never as simple as a matter of seniority versus merit. The lack of representation in the profession at both Bench and Bar is a much more complex challenge that requires a complete overhaul of the entire system. Reforms are required at multiple levels.

For instance, the JCP itself lacks the inclusivity and representation in its composition, as do the Bar Councils, the Attorney General office, the office of Federal Ministry of Law and Justice, senior and former judges and advocates of Supreme Court that have the support of the Pakistan Bar Council. This lack of diversity is indicative of the structural barriers that have led to the marginalisation of women and minorities in the justice system. It is a lot like the pot calling the kettle black.

With only 4 women out of 205 members represented in the provincial Bar Councils with none at the Pakistan Bar Council, the Bar needs to do better to be more inclusive — at least when arranging conferences on matters that impact all members of the legal community, including women. However, we do not see a similar rage for reforms in that case. In fact, the years of practice for eligibility to run as candidates was increased by five years via the Legal Practitioners and Bar Councils Amendment in 2018, which had a disproportionate impact on women and their prospect of candidacy in Bar elections held in 2020. This, in turn, had an impact on eligibility for candidacy as members of the Pakistan Bar Council, the apex body of lawyers with a say in the JCP as the candidates are elected indirectly by the electoral college composed of members of provincial Bar Councils. There has been no female Attorney General or a female Federal Minister of Law and Justice since 2010 when the JCP was first established. Despite there being seats for appointing former judges to JCP, in the past 10 years, none of the former female judges have been a part of the composition of JCP in that capacity either and neither has any female advocate Supreme Court been supported by the Pakistan Bar Council as their representative at the JCP.

If we take an even larger spectrum, the marginalisation of women begins much earlier. It could start as early as from homes, to law schools where female students have been discouraged from pursuing litigation and other ‘hard’ fields citing the non-suitability of those areas for their gender. Most female law graduates were not encouraged to go to courts even though this is now changing and so it would often be years before they would obtain their license to practice. This delay had an impact on their seniority as well as in the time it takes to complete the list of cases in which the counsel has represented clients, which is needed for advancement in the profession for instance, as an advocate of the Supreme Court.

Any reforms based on the underlying objective of transparency and restoring public confidence in the legal system must, therefore, be holistic and representative at all levels. In this regard, the letter by Attorney General for Pakistan dated September 9, 2021, is a welcome initiative as he has expressed willingness to engage with the legal community on the issue of developing the criteria for judicial appointments and has proposed that affirmative action be taken for representation of women at the Supreme Court. This would be a welcome first step and be in line with Article 25 of the Constitution of Pakistan.