The lawyers community which fought for the independence of judiciary for two years beginning March 2007 is getting suspicious about the way decisions are being taken regarding the elevation of judges, fixation of cases, formation of Supreme Court benches and selection of issues for suo motu action. Instead of following uniform criteria, there is reliance on discretion. Senior lawyers have warned that arbitrary decisions could create suspicions about motives, point to groupings within the judiciary or pressures from the establishment.
Appointing a junior judge in the absence of a valid reason for bypassing senior judges is bound to raise doubts regarding the propriety of appointments and the motives behind them. Bypassing a senior judge in favour of a junior one is tantamount to a vote of no-confidence in the latter’s competence or character or both. And he is condemned unheard, which is also a violation of the due process of law.
While selection of the higher judiciary is channeled through a collegiums, the last word lies with senior members of the judiciary in the Judicial Commission of Pakistan (JCP) who enjoy exclusive jurisdiction to ‘evaluate’ the professional capability, performance skills, rectitude and competence of the appointees.
In July, by a majority of five to four, the JCP approved the elevation of a judge who was fifth on the seniority list of Sindh High Court to the Supreme Court. The decision led to strong opposition and protests by Pakistan Bar Council, the Sindh Bar Council (SBC), the Sindh High Court Bar Association (SHCBA) as well as the Lahore High Court Bar Association (LHCBA).
Instead of drawing the right lesson, an attempt was made to elevate Justice Ayesha A. Malik, who is fourth on the seniority list of the Lahore High Court (LHC), to the Supreme Court. This led to a countrywide boycott of courts by the lawyers on Thursday. The SCBA arranged a protest demonstration followed by a lawyers’ convention which passed strongly worded resolutions.
Lack of consensus during an extended meeting of the JCP led to the rejection of Justice Ayesha A. Malik. However before public confidence in the neutrality of the superior judiciary is further shaken, the unfettered and unstructured exercise of discretion needs to be replaced by uniform procedures and conventions.