Political merry-go-round
DAWN
Published May 14, 2024
THERE has been far too much discussion on May 9 in the past week, making the issue as repetitive as our talk show discussions. But then, I do claim to write on politics so it is perhaps fair to bore the readers as much as the poor viewers compelled to watch television talk shows.
So here goes.
The week, in a way, did begin with the press conference of the DG ISPR in which he made it clear that the trials of the ‘perpetrators’ of May 9 were essential, while also adding that the PTI had to apologise for its role and change its behaviour.
Parts of this message were picked up by key members of the government as well. For example, Khawaja Asif, the defence minister, spoke of the trials reaching their logical conclusion, while the prime minister also promised a similar commitment.
However, the DG, as well as some members of the cabinet, mentioned dialogue with the PTI and its importance. The former pointed out that a dialogue can only take place among political forces as it was “not appropriate for the military to be involved”, according to a story in this paper. Since then, Rana Sanaullah has spoken of a grand dialogue, as did Bilawal Bhutto-Zardari who emphasised the need for parties to talk to each other.
The past year has turned matters into a confrontation between the state and the people.
It would require courage far more than I possess to comment on the DG ISPR’s statement but little bravery is required to dissect whatever the politicians are uttering. So here goes.
While it seems the statements emanating from the ‘government’ side were harsh (as was the reaction from the PTI), they were also not very clear. To promise strict accountability, along with occasional hints about a crackdown on the PTI, and then asking the party to also talk to its political opponents in the larger context is a bit of a mixed message.
For instance, had a similar message come last year in the aftermath of May 9, the PTI would perhaps have responded with eagerness. But after a year-long crackdown, which the party survived (it also contested and won an election) this offer may be a case of too little, too late.
And this is not simply because of its stubborn leader; there are two other factors to consider here: the party’s workers are now in an aggressive mood but also the broad-based nature of the crackdown in KP and Punjab means that beyond power politics, the past year has turned matters into a confrontation between the state and the people.
It is a point hard to explain or argue over and over again for it’s simply earned me the title of being a PTI apologist in the past year or so. But this old thought comes to mind when I come across Wusutullah Khan’s sound bite: he narrates what the rickshaw wallah said to him as he travelled to the airport after attending the Asma Jahangir Conference in Lahore.
The clip is easy to find online for those who have mastered the art of using VPN. Hence, there is little need to narrate his experience; suffice it to say that in the past six months, at least two other visitors to Lahore who hired cars or cabs recounted the same story. Or take the kind of reception Mahrang Baloch got at the conference. It wasn’t just about the ovation that she received when she spoke but also the dozens who kept coming up to her to get pictures taken with her. There is a sense of shared experience when a young Lahori man comes up to this Baloch woman and speaks of his sister who is a huge fan of Mahrang.
It is this gap that needs to be bridged, especially in the wake of a controversial election and the formation of a government seen to enjoy little legitimacy. And by this I mean the gap between the ordinary people, who have suffered due to a year-long crackdown on a party, and the state.
Has the process already begun? Will it help if some of the incarcerated are released? Or for the trials to be expedited? Or would it mean the PTI has to be given some relief, despite ‘May 9’? This is for the big brains running this government. A journalist is a journalist because it is easy to point out the problems without getting into the nitty-gritty of policymaking.
This may prove necessary because it is not enough to get the PTI into parliament and talking to other parties without also appeasing public opinion — if the people continue to be angry, they might just dump the PTI and find more radical options.
This is not simply an abstract suggestion from a bleeding-heart liberal — another label increasingly being thrown my way. Though as an aside, it is well worth pointing out a confrontational situation between the people and the state is not going to allow for a coherent and effective response to the militancy problem, which is not simply festering but growing.
The economy needs work, lots of work in the form of ‘reform’. But these reforms, despite what most suggest, are not technical decisions. They are inherently political. And among other factors, no unpopular government that is staring down a popular opposition is going to own difficult decisions such as taxing the traders or privatising SOEs. For both will carry the risk of further alienating yet another section of society. This may prove as true of the government as the establishment. And the latter will also have to consider the implications of similarly ‘difficult’ decisions such as a tax on real estate.
Mere talks in themselves will not prove enough. There will have to be concrete actions along the way too if some of the more difficult decisions are to be owned and carried out. And for this, it is not enough for the parties to cooperate in parliament; if it was, the extension given to Gen Qamar Bajwa would not be an orphan today.
The writer is a journalist.
Published in Dawn, May 14th, 2024
So here goes.
The week, in a way, did begin with the press conference of the DG ISPR in which he made it clear that the trials of the ‘perpetrators’ of May 9 were essential, while also adding that the PTI had to apologise for its role and change its behaviour.
Parts of this message were picked up by key members of the government as well. For example, Khawaja Asif, the defence minister, spoke of the trials reaching their logical conclusion, while the prime minister also promised a similar commitment.
However, the DG, as well as some members of the cabinet, mentioned dialogue with the PTI and its importance. The former pointed out that a dialogue can only take place among political forces as it was “not appropriate for the military to be involved”, according to a story in this paper. Since then, Rana Sanaullah has spoken of a grand dialogue, as did Bilawal Bhutto-Zardari who emphasised the need for parties to talk to each other.
The past year has turned matters into a confrontation between the state and the people.
It would require courage far more than I possess to comment on the DG ISPR’s statement but little bravery is required to dissect whatever the politicians are uttering. So here goes.
While it seems the statements emanating from the ‘government’ side were harsh (as was the reaction from the PTI), they were also not very clear. To promise strict accountability, along with occasional hints about a crackdown on the PTI, and then asking the party to also talk to its political opponents in the larger context is a bit of a mixed message.
For instance, had a similar message come last year in the aftermath of May 9, the PTI would perhaps have responded with eagerness. But after a year-long crackdown, which the party survived (it also contested and won an election) this offer may be a case of too little, too late.
And this is not simply because of its stubborn leader; there are two other factors to consider here: the party’s workers are now in an aggressive mood but also the broad-based nature of the crackdown in KP and Punjab means that beyond power politics, the past year has turned matters into a confrontation between the state and the people.
It is a point hard to explain or argue over and over again for it’s simply earned me the title of being a PTI apologist in the past year or so. But this old thought comes to mind when I come across Wusutullah Khan’s sound bite: he narrates what the rickshaw wallah said to him as he travelled to the airport after attending the Asma Jahangir Conference in Lahore.
The clip is easy to find online for those who have mastered the art of using VPN. Hence, there is little need to narrate his experience; suffice it to say that in the past six months, at least two other visitors to Lahore who hired cars or cabs recounted the same story. Or take the kind of reception Mahrang Baloch got at the conference. It wasn’t just about the ovation that she received when she spoke but also the dozens who kept coming up to her to get pictures taken with her. There is a sense of shared experience when a young Lahori man comes up to this Baloch woman and speaks of his sister who is a huge fan of Mahrang.
It is this gap that needs to be bridged, especially in the wake of a controversial election and the formation of a government seen to enjoy little legitimacy. And by this I mean the gap between the ordinary people, who have suffered due to a year-long crackdown on a party, and the state.
Has the process already begun? Will it help if some of the incarcerated are released? Or for the trials to be expedited? Or would it mean the PTI has to be given some relief, despite ‘May 9’? This is for the big brains running this government. A journalist is a journalist because it is easy to point out the problems without getting into the nitty-gritty of policymaking.
This may prove necessary because it is not enough to get the PTI into parliament and talking to other parties without also appeasing public opinion — if the people continue to be angry, they might just dump the PTI and find more radical options.
This is not simply an abstract suggestion from a bleeding-heart liberal — another label increasingly being thrown my way. Though as an aside, it is well worth pointing out a confrontational situation between the people and the state is not going to allow for a coherent and effective response to the militancy problem, which is not simply festering but growing.
The economy needs work, lots of work in the form of ‘reform’. But these reforms, despite what most suggest, are not technical decisions. They are inherently political. And among other factors, no unpopular government that is staring down a popular opposition is going to own difficult decisions such as taxing the traders or privatising SOEs. For both will carry the risk of further alienating yet another section of society. This may prove as true of the government as the establishment. And the latter will also have to consider the implications of similarly ‘difficult’ decisions such as a tax on real estate.
Mere talks in themselves will not prove enough. There will have to be concrete actions along the way too if some of the more difficult decisions are to be owned and carried out. And for this, it is not enough for the parties to cooperate in parliament; if it was, the extension given to Gen Qamar Bajwa would not be an orphan today.
The writer is a journalist.
Published in Dawn, May 14th, 2024
Who can rock the hybrid boat?
Abbas Nasir
DAWN
Published May 12, 2024
A NUMBER of developments over the past week suggest that the establishment is keen to enforce/ maintain the status quo and the only impediment in its path may be an assertive superior judiciary that has been increasingly finding its feet in recent weeks.
If jailed PTI leader and former prime minister Imran Khan’s article in UK’s conservative right-wing Telegraph newspaper blaming the military leadership directly for all his woes the week before was not hint enough of the state of play, two public statements by the latter clarified issues rather unambiguously.
The first came in the DG ISPR’s press briefing, which was ostensibly called to discuss Afghanistan-based terrorist groups’ involvement in attacks on Chinese nationals working on development projects in the country. But in response to a couple of questions about the PTI and Imran Khan related to the events of May 9 last year, the DG ISPR stated unequivocally that the only path to rehabilitation for the political party and its leaders was to ‘seek forgiveness for attacking your own forces’.
Then, perhaps, talks could happen and that too with ‘political parties’ (ie, the government), as the military had ‘nothing to do with politics’. Imran Khan has been consistent in saying he wouldn’t talk to the ‘powerless political parties’ and that a meaningful dialogue is possible only with the military.
The DG ISPR also lamented the delay in the prosecution and sentencing of all those responsible for the May mayhem — including the ‘leaders and mastermind’ against whom ‘irrefutable evidence’ has been gathered and submitted — and, in doing so, appeared to hint at the establishment’s frustrations with what it perceives as roadblocks being erected by the judiciary.
The content of the live presser evoked an equally adamant response from the PTI, which went on the offensive, reiterating its stance that May 9 was a ‘false flag operation’, accusing the military’s spokesman of being economical with the truth, and saying it would be happy to live with the findings of an impartial judicial commission into the May 9 events and would even apologise if found to be at fault.
If the chief was able to weather that storm then, he appears far more secure now.
The military spokesman had pre-empted this demand in his briefing earlier by saying if a probe were to happen, as was being demanded, it ought to start with 2014, and not nine years later. The 2014 PTI sit-in in the federal capital was said to have been instigated and backed by the then ISI chief.
This was the first indication that the military was prepared to hold its own accountable for past follies, if it paved the way for the trials and sentencing of PTI leaders it says were responsible for the attacks on defence installations in a number of cities in Punjab and KP.
While the spokesman left nothing to the imagination, on the first anniversary of May 9, the army chief added his voice to his chief spokesman’s in terms of stressing the need for punishing the perpetrators of the violence a year earlier, also lashing out against what he called ‘digital terrorism’.
This indicates that harsher curbs on social media are planned. So far, the PTI has had overwhelming social media dominance and had been able to keep a step ahead of its adversaries, but we will find out soon whether it has what it takes to bypass software the Chinese have developed over the years (and Pakistan has reportedly acquired) and successfully used to block dissident content.
With this ever-widening gulf between the establishment and the party it once saw as a panacea for all that ails Pakistan, the one thing that many felt could force a rethink in the establishment would have been a public manifestation of the immense support enjoyed by the PTI, as evidenced in last February’s elections.
Many Pakistan watchers keenly waited all day for multitudes of PTI supporters to spill out onto the roads and streets of major urban conurbations on the party leader’s call to ‘break the shackles’ and protest on May 9. But the brutal crackdown of the past one year seems to have knocked the wind out of the party’s sails and worn down the workers’ will.
People may turn out to vote for it in droves, but did not appear prepared to risk life, limb and liberty in coming out for mass protests. Some small localised protests did happen, but had zero impact in the sense of influencing decision-making in the corridors of power. Going forward, a couple of factors will play a role in steering developments.
The first and foremost will be the confidence the army chief has in his control over his institution. His predecessor appointed a dozen major generals to three stars in his final six weeks in office and left the incumbent little room in terms of forming his own team.
Natural attrition and the more dramatic exit of a couple of three stars on disciplinary grounds recently has, 18 months down the line, given the chief an opportunity to place senior officers of his own choosing in key roles which will give him greater freedom of action both inside and outside the institution. The promotion of three officers this week, including the DG ISPR, to three stars was another step in that direction.
The military saw May 9 as a coup against the chief, a failed attempt to dislodge him from office. If the chief was able to weather that storm then, he appears far more secure now. With the PTI protests failing to gather momentum, the only impediment in his path seems to be an increasingly assertive superior judiciary.
It can and will, in all likelihood, challenge the establishment’s pre-eminence in decision-making. It isn’t clear how the latter plans to deal with that, especially because it believes that a direly needed economic revival is only possible under the umbrella of a hybrid set-up and in a relatively calm political environment. Only the judiciary can rock its boat now.
The writer is a former editor of Dawn.
abbas.nasir@hotmail.com
Published in Dawn, May 12th, 2024
If jailed PTI leader and former prime minister Imran Khan’s article in UK’s conservative right-wing Telegraph newspaper blaming the military leadership directly for all his woes the week before was not hint enough of the state of play, two public statements by the latter clarified issues rather unambiguously.
The first came in the DG ISPR’s press briefing, which was ostensibly called to discuss Afghanistan-based terrorist groups’ involvement in attacks on Chinese nationals working on development projects in the country. But in response to a couple of questions about the PTI and Imran Khan related to the events of May 9 last year, the DG ISPR stated unequivocally that the only path to rehabilitation for the political party and its leaders was to ‘seek forgiveness for attacking your own forces’.
Then, perhaps, talks could happen and that too with ‘political parties’ (ie, the government), as the military had ‘nothing to do with politics’. Imran Khan has been consistent in saying he wouldn’t talk to the ‘powerless political parties’ and that a meaningful dialogue is possible only with the military.
The DG ISPR also lamented the delay in the prosecution and sentencing of all those responsible for the May mayhem — including the ‘leaders and mastermind’ against whom ‘irrefutable evidence’ has been gathered and submitted — and, in doing so, appeared to hint at the establishment’s frustrations with what it perceives as roadblocks being erected by the judiciary.
The content of the live presser evoked an equally adamant response from the PTI, which went on the offensive, reiterating its stance that May 9 was a ‘false flag operation’, accusing the military’s spokesman of being economical with the truth, and saying it would be happy to live with the findings of an impartial judicial commission into the May 9 events and would even apologise if found to be at fault.
If the chief was able to weather that storm then, he appears far more secure now.
The military spokesman had pre-empted this demand in his briefing earlier by saying if a probe were to happen, as was being demanded, it ought to start with 2014, and not nine years later. The 2014 PTI sit-in in the federal capital was said to have been instigated and backed by the then ISI chief.
This was the first indication that the military was prepared to hold its own accountable for past follies, if it paved the way for the trials and sentencing of PTI leaders it says were responsible for the attacks on defence installations in a number of cities in Punjab and KP.
While the spokesman left nothing to the imagination, on the first anniversary of May 9, the army chief added his voice to his chief spokesman’s in terms of stressing the need for punishing the perpetrators of the violence a year earlier, also lashing out against what he called ‘digital terrorism’.
This indicates that harsher curbs on social media are planned. So far, the PTI has had overwhelming social media dominance and had been able to keep a step ahead of its adversaries, but we will find out soon whether it has what it takes to bypass software the Chinese have developed over the years (and Pakistan has reportedly acquired) and successfully used to block dissident content.
With this ever-widening gulf between the establishment and the party it once saw as a panacea for all that ails Pakistan, the one thing that many felt could force a rethink in the establishment would have been a public manifestation of the immense support enjoyed by the PTI, as evidenced in last February’s elections.
Many Pakistan watchers keenly waited all day for multitudes of PTI supporters to spill out onto the roads and streets of major urban conurbations on the party leader’s call to ‘break the shackles’ and protest on May 9. But the brutal crackdown of the past one year seems to have knocked the wind out of the party’s sails and worn down the workers’ will.
People may turn out to vote for it in droves, but did not appear prepared to risk life, limb and liberty in coming out for mass protests. Some small localised protests did happen, but had zero impact in the sense of influencing decision-making in the corridors of power. Going forward, a couple of factors will play a role in steering developments.
The first and foremost will be the confidence the army chief has in his control over his institution. His predecessor appointed a dozen major generals to three stars in his final six weeks in office and left the incumbent little room in terms of forming his own team.
Natural attrition and the more dramatic exit of a couple of three stars on disciplinary grounds recently has, 18 months down the line, given the chief an opportunity to place senior officers of his own choosing in key roles which will give him greater freedom of action both inside and outside the institution. The promotion of three officers this week, including the DG ISPR, to three stars was another step in that direction.
The military saw May 9 as a coup against the chief, a failed attempt to dislodge him from office. If the chief was able to weather that storm then, he appears far more secure now. With the PTI protests failing to gather momentum, the only impediment in his path seems to be an increasingly assertive superior judiciary.
It can and will, in all likelihood, challenge the establishment’s pre-eminence in decision-making. It isn’t clear how the latter plans to deal with that, especially because it believes that a direly needed economic revival is only possible under the umbrella of a hybrid set-up and in a relatively calm political environment. Only the judiciary can rock its boat now.
The writer is a former editor of Dawn.
abbas.nasir@hotmail.com
Published in Dawn, May 12th, 2024
An inclusive judiciary
Reema Omer
ACCORDING to media reports, a recent meeting of the Judicial Commission of Pakistan (JCP) was adjourned without finalising changes in its rules. This was because the law minister informed the members that the federal government was considering amending the Constitution to revise the appointment process of high court and Supreme Court (SC) judges.
The government has thus far not revealed details of its proposed amendments. Some indication of possible reform can be found in the PML-N’s manifesto, which provides for an “inclusive procedure for appointment of Superior Court Judges on merit”. The PPP’s manifesto recognises the importance of diversity, and promises to increase representation for women, minorities, and underrepresented segments of society in the judiciary. The PTI’s manifesto makes similar commitments regarding making the judiciary more inclusive and the process of appointments more transparent.
Importantly, the committee constituted in December 2023 to review the Judicial Commission Rules, 2010, also listed “diversity” as one of the key areas that required consideration.
The major parties and courts agree there is need for reform in the appointments process.
It appears, therefore, that the major political parties and the courts agree there is need for reform in the appointments process to make it more inclusive and the judiciary more diverse.
Specifically, a number of reforms will be required to achieve this objective.
The first issue that needs to be addressed is that of framing. Often, inclusion and diversity are considered contrary to the idea of “merit”, and are reduced merely to tokenism and tick-box exercises. This perception must be strongly challenged. The inclusion of women as well as other marginalised groups in the administration of justice is a cross-cutting issue, with implications for the credibility and legitimacy of the justice system in larger society. It should be seen as an objective in itself as well as an essential pre-condition for the effective protection of human rights and substantive equality.
It is now recognised that diversity is not an optional ‘extra’ but a basic component of the judiciary’s ability to do its job. And that diversity and inclusion should be considered a part of ‘merit’ and not in opposition to it. This is why a number of constitutions recognise the importance of diversity in the judiciary — specifically, greater inclusion of women — but also consideration for religious, racial and other factors, depending on the context. Any amendments to the process of judicial appointments, therefore, should expressly provide for the equal representation of women, inclusion and diversity as objectives of the judicial appointments process.
Second, the composition of the JCP needs amendment. Currently, it comprises the chief justice of Pakistan, four most senior judges of the SC, one former judge of the SC, the federal law and justice minister, the attorney general of Pakistan, and a senior SC advocate. When the JCP is considering appointments for the high courts, it includes four additional members.
At present, all members of the JCP are men. This is not accidental, but a consequence of the larger exclusion of women from the top echelons of the legal profession in the country. Its composition also suffers from lack of diversity and inclusion of members who are not from the judiciary or the bar. This absence has an adverse impact on the JCP’s credibility and is not sustainable. Article 175A of the Constitution should, therefore, be amended to make the JCP more diverse, and also aim to ensure that its composition broadly reflects that of larger society in terms of gender, ethnicity, religious groups, and regional balance.
Third, there is currently an absence of any criteria for appointments to the SC and high courts. The Constitution only stipulates the requirement of age, citizenship, and minimum professional experience. The Judicial Commission Rules are also completely silent on the criteria on which the JCP nominates or assesses candidates. The lack of transparent and public criteria on which judicial appointments are made is incompatible with international standards and best practices on judicial appointments.
Changes in the judicial appointments process should, therefore, include criteria on which candidates are considered for recommendation, and give due consideration to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination and marginalisation.
The fourth issue that also has an impact on inclusion and diversity is how nominations are initiated. At present, chief justices have the sole power of ‘initiation’; ie, it is only the chief justice of the relevant court who can recommend names of candidates, who are then considered by the JCP for nominations to the parliamentary committee. This power has dubious roots, creates an unnecessary hierarchy within the JCP, and has led to the perception of misuse.
In a number of jurisdictions, including the UK and South Africa, the bodies empowered to make judicial appointments invite interested candidates to apply to be considered for appointment to the Supreme Court. This model opens up the judicial appointments process, allows a more diverse range of eligible candidates to apply, and eliminates any bias, real or perceived, in the ‘initiation’ stage. The government should, therefore, consider making provision for the JCP inviting applications for vacancies in the high courts and SC.
The fifth area that needs reform is lack of transparency. At present, the deliberations and proceedings of the JCP are secret and opaque. The public has no information about why certain candidates are chosen for consideration and on what basis candidates are selected for nomination. In the larger context of discriminatory practices and attitudes against women and other marginalised groups, such secrecy often works to their detriment and leads to the perception of bias in the appointments process.
While the detailed deliberations of the JCP need not be made public, the reasons for selecting certain candidates for nomination must be disclosed.
Most importantly, perhaps, the government’s reform package must take into consideration input from a broad range of stakeholders. Opaque and hasty attempts at such far-reaching legislation that are not consultative would defeat the very objectives of transparency, merit, and inclusion such reform claims to achieve.
The writer is a legal adviser for the International Commission of Jurists.
reema.omer@icj.org
X: reema_omer
Published in Dawn, May 11th, 2024
Reema Omer
DAWN
Published May 11, 2024
ACCORDING to media reports, a recent meeting of the Judicial Commission of Pakistan (JCP) was adjourned without finalising changes in its rules. This was because the law minister informed the members that the federal government was considering amending the Constitution to revise the appointment process of high court and Supreme Court (SC) judges.
The government has thus far not revealed details of its proposed amendments. Some indication of possible reform can be found in the PML-N’s manifesto, which provides for an “inclusive procedure for appointment of Superior Court Judges on merit”. The PPP’s manifesto recognises the importance of diversity, and promises to increase representation for women, minorities, and underrepresented segments of society in the judiciary. The PTI’s manifesto makes similar commitments regarding making the judiciary more inclusive and the process of appointments more transparent.
Importantly, the committee constituted in December 2023 to review the Judicial Commission Rules, 2010, also listed “diversity” as one of the key areas that required consideration.
The major parties and courts agree there is need for reform in the appointments process.
It appears, therefore, that the major political parties and the courts agree there is need for reform in the appointments process to make it more inclusive and the judiciary more diverse.
Specifically, a number of reforms will be required to achieve this objective.
The first issue that needs to be addressed is that of framing. Often, inclusion and diversity are considered contrary to the idea of “merit”, and are reduced merely to tokenism and tick-box exercises. This perception must be strongly challenged. The inclusion of women as well as other marginalised groups in the administration of justice is a cross-cutting issue, with implications for the credibility and legitimacy of the justice system in larger society. It should be seen as an objective in itself as well as an essential pre-condition for the effective protection of human rights and substantive equality.
It is now recognised that diversity is not an optional ‘extra’ but a basic component of the judiciary’s ability to do its job. And that diversity and inclusion should be considered a part of ‘merit’ and not in opposition to it. This is why a number of constitutions recognise the importance of diversity in the judiciary — specifically, greater inclusion of women — but also consideration for religious, racial and other factors, depending on the context. Any amendments to the process of judicial appointments, therefore, should expressly provide for the equal representation of women, inclusion and diversity as objectives of the judicial appointments process.
Second, the composition of the JCP needs amendment. Currently, it comprises the chief justice of Pakistan, four most senior judges of the SC, one former judge of the SC, the federal law and justice minister, the attorney general of Pakistan, and a senior SC advocate. When the JCP is considering appointments for the high courts, it includes four additional members.
At present, all members of the JCP are men. This is not accidental, but a consequence of the larger exclusion of women from the top echelons of the legal profession in the country. Its composition also suffers from lack of diversity and inclusion of members who are not from the judiciary or the bar. This absence has an adverse impact on the JCP’s credibility and is not sustainable. Article 175A of the Constitution should, therefore, be amended to make the JCP more diverse, and also aim to ensure that its composition broadly reflects that of larger society in terms of gender, ethnicity, religious groups, and regional balance.
Third, there is currently an absence of any criteria for appointments to the SC and high courts. The Constitution only stipulates the requirement of age, citizenship, and minimum professional experience. The Judicial Commission Rules are also completely silent on the criteria on which the JCP nominates or assesses candidates. The lack of transparent and public criteria on which judicial appointments are made is incompatible with international standards and best practices on judicial appointments.
Changes in the judicial appointments process should, therefore, include criteria on which candidates are considered for recommendation, and give due consideration to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination and marginalisation.
The fourth issue that also has an impact on inclusion and diversity is how nominations are initiated. At present, chief justices have the sole power of ‘initiation’; ie, it is only the chief justice of the relevant court who can recommend names of candidates, who are then considered by the JCP for nominations to the parliamentary committee. This power has dubious roots, creates an unnecessary hierarchy within the JCP, and has led to the perception of misuse.
In a number of jurisdictions, including the UK and South Africa, the bodies empowered to make judicial appointments invite interested candidates to apply to be considered for appointment to the Supreme Court. This model opens up the judicial appointments process, allows a more diverse range of eligible candidates to apply, and eliminates any bias, real or perceived, in the ‘initiation’ stage. The government should, therefore, consider making provision for the JCP inviting applications for vacancies in the high courts and SC.
The fifth area that needs reform is lack of transparency. At present, the deliberations and proceedings of the JCP are secret and opaque. The public has no information about why certain candidates are chosen for consideration and on what basis candidates are selected for nomination. In the larger context of discriminatory practices and attitudes against women and other marginalised groups, such secrecy often works to their detriment and leads to the perception of bias in the appointments process.
While the detailed deliberations of the JCP need not be made public, the reasons for selecting certain candidates for nomination must be disclosed.
Most importantly, perhaps, the government’s reform package must take into consideration input from a broad range of stakeholders. Opaque and hasty attempts at such far-reaching legislation that are not consultative would defeat the very objectives of transparency, merit, and inclusion such reform claims to achieve.
The writer is a legal adviser for the International Commission of Jurists.
reema.omer@icj.org
X: reema_omer
Published in Dawn, May 11th, 2024
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