Reforming Judicial Appointments or an Internal Power Struggle?
Nida Usman Chaudhary
Whenever power is vested in a single institution or office in a manner that is non-transparent, questions are bound to be raised. In Pakistan, one such institution/office is that of the Chief Justice of any given court. The Chief justice, being the senior most judge yields significant arbitrary powers as regards the administration of the court. These are manifested contentiously with regard to the composition of the benches, fixation of cases and nomination of judges against vacancies in their courts. Any attempts to reform these processes via constitutional amendments have also been rendered largely ineffective due to successive rulings rendering such matters justiciable before the courts on the pretext to maintain and uphold the doctrine of separation of powers and independence of judiciary. Critics of this arrangement from among the Bar have often expressed their uneasiness with the way such power is structured and/or exercised due to the fear that the same may be easily manipulated by political and non-political forces to achieve outcomes in important matters that suit and serve the needs of time. The tainted past of the activist judiciary does not help its case much and the reasons to be skeptical of this arbitrary arrangement of power vested in one institution/office surely are not without merit. However, these larger fears towards politicization of judiciary and it being reduced to a tool for political engineering cannot be allowed to limit or cloud our vision when we sit down to speak of or work on the agenda of reforming judicial appointments or composition of benches for that matter. The process of reform and what shape it ought to take requires much deeper engagement and wider consultation with all stakeholders including women, in a rational, participatory, transparent and inclusive manner as opposed to coming up with short-term knee jerk reactionary ‘solutions’ such as the seniority argument, that do little to nothing to address the core issues at hand, if not make them worse.
This is because, if on the one hand the political engineering via judicial means has been one dark truth, then so has the historical discrimination against women and other marginalized classes in the justice sector that enables the status quo of dominance of one class, gender, ethnicity etc over the rest. As a result, a largely homogenous class of a single gender has come to dominate the Benches. Such homogeneity itself is said to lead to inherent biases of the dominant class and gender being perpetuated via their decisions and their ability to self-appoint their own kind on such positions thereby extending longevity to their class and gender in such key roles. This has led to judicial impartiality amidst such homogeneity being questioned elsewhere as well wherever this has happened. In his text, ‘The Politics of the Judiciary’, Professor Griffith says of the English judiciary, ‘These judges have by their education and training and the pursuit of their profession as barristers acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represents the public interest.’ In order to address this, some scholars have argued that the presence of diverse views can actually play a role in offsetting the partiality inherent in homogeneity and play a major role in introducing judicial neutrality and impartiality into the justice system, such that diversity becomes a tool for ensuring impartiality as opposed to a factor that erodes impartiality.
It is not enough to speak of reforms without speaking of diversity and inclusion. In fact, these two are intrinsically linked and you cannot have one without the other. In that, you cannot achieve freedom from intervention for political gains without addressing the structural barriers that hinder the advancement of diverse sections of the society and members of the justice sector to advance and partake in leadership roles and positions. Any arguments to reduce the ability of interference for political outcomes must also include the argument for fair representation as otherwise, such arguments stand exposed as simply a means for an internal power struggle and desire for the Bar to dominate the Bench in their ability to get people appointed as opposed to a genuine effort on their part to reform the system in a way that makes inclusion possible.
If we can understand this, then we can also understand that any ‘solutions’ proposed would also need to pass this test and provide genuine means to ensure inclusion. Accordingly, it is against this benchmark that we must question the seniority argument that is often advanced by the Bar seemingly in a bid to curtail the arbitrary powers of the Chief albeit without any thought to the second important element – that of inclusion and diversity.
As per Bar’s own admission, in absence of a better criteria, the seniority argument was advanced in ‘helplessness’ as an interim demand until such time that a criterion for appointments was made. They are of the view that as an immediate step to curb arbitrary powers, the process should be mechanized on basis of seniority to avoid the perception of cherry picking and favoritism. What they are failing to appreciate is that once such a ‘right’ would be entrenched, it would be extremely difficult to drop it and move towards any conversation for actual structural reform that looks at this issue more holistically and inclusively. They also fail to appreciate that technicalities such as seniority do little to ensure representation and actually jeopardize the possibility of pushing for more gender balanced composition on the Bench. This is because of the historical cyclical patterns of discrimination and discouragement that have kept women from active legal practice over the years impacting their seniority in the profession. In addition to women, such technicalities also impact minorities and are no means to guarantee provincial or ethnic representation either when for instance the line of seniority favors a certain class and gender from a certain province or ethnicity successively. In such scenarios, there will be no means to appoint the one that brings diversity to the Bench as you would be tied to the mechanical system of appointing the one who is most senior. In this way, the only thing seniority would perpetuate would be the homogeneity of class and gender. ‘Seniority’ also does nothing to address the other core issues, that of composition of Benches and fixation of cases so if curbing political engineering really is the objective and not pushing women back, then insistence on seniority will not be of much help.
A genuine solution would be one that addresses all these contentious aspects of the current system, that enables arbitrary exercise of power and perpetuation of homogeneity on the Bench, as opposed to one that neither solves any of these issues but rather adds to the discrimination against women and other minorities in the justice sector. In this regard, several proposals for reform have been published by female lawyers but an effort to include their work and voices has not been made. If the Bar is genuinely not against women coming forward, it would do well to rethink its strategy by ensuring that voices of women are included in the on-going process of reform and would drop their demand to impose seniority seeing how inadequate that is as a response anyway and they too would much rather push for representation instead of seniority.
The writer is a diversity and inclusion advocate.
Originally Published in NayaDaur/TheFridayTimes on July 5, 2022