The ascent of Justice Ayesha A Malik as the first ever woman judge in the Supreme Court of Pakistan is indeed quite historic. It is certainly heartening in the context of gender equality and the proponents of human rights may be somewhat elated and would naturally favour the elevation of more female superior judges. Even the European Union, the emblem of a more harmonious world future, which also recently elected the first female President of its Parliament of 27 countries, has expressed its pleasure at the development. Surpassing this euphoria, her rise has also impressed upon us the exigency, not only to reform present policies and the process for the selection and installation of superior judges but also to restructure or rather democratise the entire structure and spectrum of the national superior judicial system.
This is because her selection also ruffled the feathers of representative councils and associations of legal fraternities, leading them to express their concern and stage protests as the prevailing policy of preferring seniority of the Lords of the High Courts for their selection to the Supreme Court had been ignored in this elevation. These organisations evidently have the expertise and the information about the relative seniority of superior lords in various High Courts. Yet there are also some far bigger dictates to move with the times and global realities to ensure equal rights and avenues to women in their professions. The dilemma thus evidently necessitates far more radical revisions and amendments to the rules rooted to mere seniority as the number of female judges in the senior cadres eligible for elevation may be quite miniscule to make up the parity.
A quick convenient route for this can be to assign a proper share for the female judges in all the High Courts as well as the Supreme Court proportionate to their number at various stages in this profession. But even beyond such stopgap salves, there has been a mounting concern to reform the structure, scope, spectrum and selection of the superior judiciary almost ever since Justice Iftikhar Chaudhry ditched the democratisation of this process, pioneered by the eighteenth amendment. Resentments regarding the lack of transparency, wider consultations and excessive powers of the CJP as a chairman of the Judicial Commission (JC), have also similarly persisted. The PBC even withdrew its representative from the JC to render its proceedings void of their wider representative consent and rapport. Some heavyweight lawyers also filed writ petitions, requesting various significant steps to streamline the basis and criteria for these selections and recommendations.
Even the Parliamentary Committee on Judges Appointment (PC) expressed its surprise over what it termed the “pick-and-choose method” employed by the JCP. It was reduced merely to rubber stamp nominees of the JCP and even bound to submit the reasons for any rejection—an injunction later invalidated by the nineteenth amendment.
The exclusive JCP prerogative to search for and finalise the candidates for submission to the PC thus evidently has to be democratised by enhancing the role of the Parliament emulating the most established and pervasive principle and practice in the advanced democracies. The reigning superior lords are almost nowhere involved in this selection process. In the US, all Federal Judges, for instance, are nominated by the Executive and approved by the House Committee while judges in its 23 states are elected through a partisan or nonpartisan election and the others have their hybrid versions. In Switzerland, they are also elected by the Federal Assembly. In Australia, New Zealand, Canada, Denmark and Ireland they are appointed by the PM and the cabinet. In Germany, a special Judges Election Council comprising the Secretary of Justice from each of the 16 federating states and 16 members deputed by the Federal Parliament, is constituted for this purpose. In Japan and Ireland, even their performance is periodically reviewed by the Parliaments.
The extent of representatives’ role in various democratic societies can vary and may be gradually modulated. Yet the arguments that parliamentarians generally may lack the expertise to evaluate the acumen and standing of the professionals, is foundered by the fact that the Parliament can avail most extensive expertise of the legal fraternity and the former lords sparing the reigning lords. The burden on the Supreme Court can be similarly reduced by devolving some of its powers to the provincial and the regional courts. It can consider only the cases concerning the federation, federal versus provincial, inter provincial adjudications and some cardinal constitutional interpretations. The cases pertaining to the provincial departments can end at their High Courts. Some powers of the High Courts could accordingly be delegated to the District Courts carrying justice further to the threshold of the masses. This entry to the super constellation thus may spur new reforms.
The writer is an academic and freelance columnist. firstname.lastname@example.org