Judicial tricks, Pak-India style

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 342 per centThe 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 Pakistanrsquos legal community suspect that the Establishment of which the military is the lynchpin invoked the cause of womenrsquos empowerment to attempt packing the Supreme Court with pliable judgesBut 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 Malikrsquos elevationBut judging merit argue the sticklers of the seniority principle involves subjectivity which becomes a pretext for the Establishment to curtail the judiciaryrsquos independence This is why in 1996 in the AlJehad 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 executiveIt also held that the seniormost judge of the high court had a ldquolegitimate expectancyrdquo to be considered for appointment as Chief Justice CJ In 1998 in the Malik Asad Ali case the Supreme Court ruled that the seniormost judge of the Supreme Court too had a ldquolegitimate expectancyrdquo to become CJPA 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 fivemember 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 CourtLawyer 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 Musharrafrsquos coup Chief Justice Hasan Khan on retirement was made the chief election commissionerThen 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 commissionrsquos decisions would then go to an eightmember bipartisan parliamentary committee which could withhold approval but the same could be judicially challengedMalikrsquos elevation became controversial as the judicial commission split 54 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 Malikrsquos candidature to voteAt 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 Sethrsquos shortcoming He was one of the two judges who ordered Musharraf to be publicly hanged for high treasonIn 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 Khanrsquos 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 Establishmentrsquos pawsThis 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 JusticesmdashDipak 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 farSome judges were given sinecures on retirement Gogoi was made a Rajya Sabha member and Arun Mishra who delivered several progovernment 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 Centrersquos favour in its battle against the Delhi governmentHamid Khan warns India must know that once the judiciaryrsquos independence is compromised it is hard to win it back as is evident from Pakistanrsquos experience Just as it is hard to roll back majoritarian and illiberal politics of which Pakistan became a victim decades agomdashand India too seems headed to becoming oneThe writer is a senior journalistSend your feedback to mailbagmiddaycomThe views expressed in this column are the individualrsquos and donrsquot represent those of the paper