Approach the bench

Published in Dawn

There was, some time ago, an archbishop that said, ‘I cannot say that I know much about the law, having been far more interested in justice.’

To hear William Temple today, some lawyers might go into a tizzy. Yet there’s always been a tension between law and justice – between what is, and what cannot be.

That tension also creeps into the appointments of the men and women charged with justice. The recent hubbub around the elevation of judges to the Supreme Court – and the resulting debate between this writer’s seniors at the bar – is a case in point.

History, too, is in play. When a land is mostly ruled by field marshals or feudal barons, it’s extra important for qazis to be clean, competent, and morally independent: justice being high in demand and low in supply.

But the current question – whether judges of the High Court should be favoured for the Supreme Court based on seniority alone – needn’t detain us this long. The answer is no.

One brilliant legal eagle cited Justice Holmes on the matter: ‘The life of the law has not been logic. It has been experience.’ Yet neither logic nor experience tell us that judges should be elevated based on whether they were born in January or July, or took oath in April or December.

Best to start, then, with the elephant in the room: the growing dread that there’s more to all this than meets the eye. ‘Whispers abound,’ wrote one senior counsel in another paper, about elevations being ‘part of a court-packing campaign for a so-called curative review in a case involving the judiciary.’

If this is true, this debate means nothing – since whether one favours seniority or merit would be solely driven by what outcome they wish to see in one particular case. If this is untrue, as one can only hope, their Lordships must root out any cause for such whispers altogether.

To turn to the question itself: the main reason seniority isn’t the basis for elevation to the Supreme Court is because the law just doesn’t say so. Article 177 of the Constitution, which governs such appointments, doesn’t mention seniority. It doesn’t even mention a minimum age (unlike for High Court judges, who must be 45).  

Nor does parliament. In the half-century since we’ve had our Constitution, our lawmakers never tweaked Article 177 to include ‘seniority’ (unlike, say, Article 180, which used to require acting Chief Justices of Pakistan to be senior-most). That Article 177 is silent on the matter isn’t a coincidence.

It’s the same with judgments. Of the two landmark verdicts on judicial appointments – Al-Jehad and Malik Asad Ali – neither dub seniority the basis for elevation. Quite the contrary: the Court already held in Supreme Court Bar Association v. Federation that seniority doesn’t apply to appointments to the apex court.

One gentleman scholar called the Bar Association judgment intellectually dishonest. Another called it intellectually honest but factually dishonest. Honest or dishonest, intellectual or factual, it’s been around for two decades, has never been overturned, and remains the law of the land.

Since the law, the legislature, and the judgments in field are clear on the subject, we come to the second question: should seniority be made the rule anyway?

The answer is no again. The seniority principle came about to shield judges from the sun-king of the day, not to peg their appointments to how long they had sat in a chair. It makes sense to the extent of its current use: among already appointed peers on the Supreme Court and High Courts, where Chief Justices are first among equals.

In any event, an appointment to the Court is neither a transfer, nor a promotion. As has been said already, our judges aren’t bureaucrats, nor should they aspire to become the blind, fossilized elephant we call the civil service.

Others point to a lack of objective criteria for appointment, though they’ve yet to suggest a single criterion that’s convincing. They would nonetheless agree that no criteria should include date of birth or date of oath.

Yet others cite Muhammad Munir’s appointment as Chief Justice of Pakistan as a cautionary tale. This ignores the fact that Munir, destructive as he was, leapfrogged over judges of the Supreme Court, not the High Court – an impossibility today.

By the same logic, Pakistan’s most celebrated Chief Justices – from Cornelius to Tassaduq Hussain Jillani – would never have gotten the chance, having never been the most senior judges of their High Courts (ironically, Munir was).

Finally, this paper was correct to say we denied this country its first female jurist on the Court – Fakhrunissa Khokhar – by not following seniority. It would be worse still to follow seniority now, and deny the Court its first female jurist – Ayesha A. Malik – for another 74 years.

Let’s carry on.