Judicial tricks, Pak-India style

Ayesha Malik was fourth in seniority in the Lahore High Court, where she had been a judge. Pic/ICJ Twitter

The elevation of Justice Ayesha Malik as the first woman judge in the history of the Supreme Court of Pakistan can be taken as symbolic of that country seeking to break away from conservatism. Her elevation was hailed as a reflection of the growing gender sensitivity in a country where 11 women are raped daily and female secondary education is just 34.2 per cent.

The apparent is, however, rarely the complete story. Malik was fourth in seniority in the Lahore High Court, where she had been a judge. This fact has had Pakistan's legal community suspect that the Establishment, of which the military is the lynchpin, invoked the cause of women's empowerment to attempt packing the Supreme Court with pliable judges.

But the Women in Law Initiative, a feminist organisation, said the brouhaha over Malik reeked of male chauvinism. They counted 41 instances when seniority was bypassed in appointments of judges. Was not merit given recognition in all these cases? Why the fuss over Malik's elevation?

But judging merit, argue the sticklers of the seniority principle, involves subjectivity, which becomes a pretext for the Establishment to curtail the judiciary's independence. This is why in 1996, in the Al-Jehad case, the Supreme Court ruled that the opinion of the Chief Justice of Pakistan (CJP) and Chief Justices of High Courts on the suitability of candidates for judgeship was binding on the executive.

It also held that the senior-most judge of the high court had a "legitimate expectancy" to be considered for appointment as Chief Justice (CJ). In 1998, in the Malik Asad Ali case, the Supreme Court ruled that the senior-most judge of the Supreme Court, too, had a "legitimate expectancy" to become CJP.
A year later, after General Pervez Musharraf deposed Prime Minister Nawaz Sharif, three judges of the Lahore High Court, ranked third, fourth and thirteenth in seniority, were elevated to the Supreme Court. Their appointments were challenged. A five-member Supreme Court bench, headed by Chief Justice Irshad Hasan Khan, ruled, rather hilariously, that the principle of seniority applied in appointments to CJs, but not to judges selected for the Supreme Court.

Lawyer Hamid Khan, the author of A History of the Judiciary in Pakistan, filed a review petition, but then withdrew it, saying he could not expect justice from judges who had invoked the doctrine of necessity to legitimise Musharraf's coup. Chief Justice Hasan Khan, on retirement, was made the chief election commissioner!

Then came the 18th Constitutional amendment of 2010. All decisions on appointments to superior courts were now to be made by a judicial commission comprising the CJP, four senior judges, a retired judge, a bar representative, the law minister and the attorney general. The commission's decisions would then go to an eight-member bipartisan parliamentary committee, which could withhold approval, but the same could be judicially challenged.

Malik's elevation became controversial as the judicial commission split 5:4 on her appointment. It was more so as Justice Qazi Faez Isa, widely respected for his independence and liberalism, voted against Malik. He had publicly advised the CJP to evolve criteria for nomination of judges, apart from ascertaining whether the Constitution permitted affirmative action for marginalised groups, before putting Malik's candidature to vote.

At the nub of the controversy surrounding Malik is the apprehension that the Establishment wants to pack the Supreme Court with judges willing to play ball. Five vacancies in the apex court are to occur this year. In 2020, Waqar Ahmed Seth, the CJ of the Peshawar High Court, was overlooked in favour of a junior for the Supreme Court. Seth's shortcoming? He was one of the two judges who ordered Musharraf to be publicly hanged for high treason.

In the same year, three junior judges of the Lahore High Court, one of them ranked 26th in seniority, were elevated to the Supreme Court. Hamid Khan's petition on their behalf has yet to be admitted in the Supreme Court. Indeed, the independence of the Pakistani judiciary could not have been compromised without some judges willing to become the Establishment's paws.

This is as true of the Indian Supreme Court, which was perceived to have acquiesced to constitutionally suspect decisions of the Modi regime during the tenures of three Chief Justices - Dipak Misra, Ranjan Gogoi and Sharad Bobde. Even now, challenges to the reading down of Article 370 and the electoral bond scheme remain unheard. Judicial inaction has let the government have its way so far.

Some judges were given sinecures on retirement. Gogoi was made a Rajya Sabha member, and Arun Mishra, who delivered several pro-government verdicts, the chairman of the Human Rights Commission. G Rohini, the first woman Chief Justice of the Delhi High Court, was made chairperson of a commission to subcategorise the Other Backward Classes, months after she ruled in the Centre's favour in its battle against the Delhi government.

Hamid Khan warns: India must know that once the judiciary's independence is compromised, it is hard to win it back, as is evident from Pakistan's experience. Just as it is hard to roll back majoritarian and illiberal politics, of which Pakistan became a victim decades ago - and India, too, seems headed to becoming one.

The writer is a senior journalist

Send your feedback to mailbag@mid-day.com

The views expressed in this column are the individual's and don't represent those of the paper