Thursday, August 12, 2021
Allow me to begin by stating that, in most situations, I wouldn’t insert myself into a debate that is already saturated by the opinions of Salman Raja; Feisal Naqvi; and Salahuddin Ahmed. However, seeing as how the debate curls around the totem of merit, I would hope that relative inexperience will not disqualify this brief offering – much of which only considers existing points from a different perspective.
To pick up from the two basic propositions that Feisal Naqvi rightly reduces the debate to: “competence is not [necessarily] the same thing as seniority”, and “it is vitally important that only the most competent judges sit on the Supreme Court of Pakistan”.
Not one of the three participants in this debate seems to disagree with either proposition. Everyone agrees that seniority-superiority has to go; the disagreement is a matter of when. Salman Raja and Feisal Naqvi argue that there is already no place for it. Salahuddin Ahmed argues that it is the least bad option while we come up with a better one.
Let’s examine this. If seniority is a lazy, unimaginative process that leaves deviation from mediocrity to chance, then why accept it as even a temporary measure? If the ultimate object is merit, then let us stick to just that for now. Logically, you would only pick seniority-superiority if it identified merit more frequently than available alternatives. But it’s hard to see how that might be the case.
Say you have five candidates - all inducted at the same time, but born in different months. While this would make their relative ‘seniority’ a matter of pure chance, assume A is the best choice. Under a system dictated by ‘seniority’, A will only be picked one out of every five times. Phrased differently, only one out of five possibilities maximises A’s time at the Supreme Court.
Now the alternative: selection after deliberation by the Judicial Commission. Assume, first that the Judicial Commission convenes to do nothing more than roll a die. This, already, is an equally successful system. If the JC’s only function were to identify any one person less competent than the most competent person, eliminate them, and then roll a die to determine who gets picked next, it would already be 25 percent more successful as a system.
But, let us look at this not through the lens of ‘logic’, but of ‘experience’. Experience suggests that sometimes, rather than eliminating the worst person for the job, the JC might deliberately eliminate the best person for it. In such a situation, seniority may well be the better system: one in five is better than nothing. But, given our 17-member Supreme Court, even if this were a country where 13 elevations to the Court were entirely ‘engineered’, and only 4 were good-faith efforts that managed to arrive at the correct candidate, this would still be the superior system to seniority.
Much of the temptation to pick seniority is a product of looking at the issue from the wrong end. The right judge can be chosen by the wrong system, and the wrong judge might be chosen through the right system. This is why either side can quote examples of judges to support its argument. The point is to pick the system that picks the right judge more often than the alternatives.
But, to be clear, choosing the forest over the odd tree does not mean ignoring individual cases altogether. The point is just that when the superior system produces an inferior result, the goal must be to improve the same system, not to revert to an inferior one.
Which brings us to the second point of disagreement. Past the supposed transitory value of seniority, everyone is in agreement that a merit-based system is superior. It is just not clear what such a system would look like. Salahuddin Ahmed argues that what we need is a system that grounds elevation in ‘objective criteria’.
Similar attempts have been made by the likes of UChicago's Eric Posner and NYU’s Stephen Choi – who even suggest the same ‘productivity’ and quality of opinions as two of their three criteria. I won’t reproduce the extensive challenges to the idea, but broadly: not only are the criteria contentious and hard to actually measure even with proxies, but several components are self-contradictory.
But one need not term all this in the absolute terms that Feisal Naqvi does, either. Just because a system cannot be entirely objective does not mean it cannot be more objective. And, in any case, objectivity is just one route to a distinct but connected goal that Salman Raja identifies: credibility. In a system that rests upon moral legitimacy, what good is a mechanism that picks the right person if that choice is not grounded in trust?
But while Salman Raja argues that “[c]redibility rather than lack of rules is the issue”, this seems a needless binary. Rules mean that even if the inferior candidate is chosen, that candidate is still brought closer to the ideal one. And while rules may be flouted, these departures are at least visible. The extent may be debatable, but rules directly increase credibility.
Consider the JC’s present deliberations. For starters, if any of this reporting is incorrect, then it’s important to remember that the reason we have to rely on it is that the JC has not made all of this public. If the thinking is that making it public will lower judges in the eyes of the public, then the only difference that this will make is that the public will limit the countless potential reasons to the actual ones. And compared to the confirmation hearings for US justices, this would be a breeze.
But if we accept these reports as they are, it is obvious that several objective criteria were actually discussed – such as number of judgments and disposal rate. These seemingly took a backseat to ‘temperament’ – which in Justice Abbasi’s case, seems to have been undercut by a single incident.
One solution might be to suggest a formula that accounts for both objective and subjective components. But even a formula like this lends itself to the kind of manipulation where objective components simply lend a disingenuous patina of credibility. Which brings us back to rules. One of the biggest challenges to credibility remains the sense that judges operate in an entirely unbounded space – or what everyone has referred to as ‘unstructured discretion’. If objective criteria are treated not as components of a formula, but thresholds, this limits subjective discussion by objective boundaries.
Consider some questions. If seniority does not bind appointments, then why did they not consider anyone below fifth place? How far down can one go? Is it important to provide detailed reasons for all available candidates? If so, why is there no mention, or detailed mention, of Justice Rizvi, who was one place above Justice Mazhar? All of these can be solved through appropriate rules. A minimum of years, or reported judgments, or disposal rate; a requirement to discuss all relevant criteria for each candidate, which shall be publicly available.
And the erosion of credibility continues. Consider the decision to, now, appoint the SHC’s chief justice as an ad-hoc judge. If the overarching goal is merit, then why wasn’t Justice Abbasi (the apparent runner-up) elevated as an ad-hoc judge? If an ad-hoc judge is an equal member of the bench, why elevate someone without enough reported judgments? If seniority is just a convention that can be discarded, then why the deference to provincial quotas? With a vacancy that arguably still exists, and one emerging in less than a week, what of Al-Jehad? And this is all the present. Lord (and Lordships) forbid, the Commission – based on such opaque reasoning – decides to elevate a lawyer directly to the Supreme Court (a lawyer who, constitutionally, does not even have had to have practised in the Supreme Court, at all).
The inescapable truth, as Faisal Naqvi points out, is that ultimately, we need to trust someone or something at some point. That something cannot be chance. But if it is to be the Judicial Commission, then that trust cannot be taken for granted. Earning it will take a lot of work.
The writer is a lawyer. He tweets @brainmasalaar and can be reached on [email protected].
This article originally appeared in the August 12, 2021 edition of daily The News. It can be accessed here.