WHILST there are many problems with the 26th Amendment, perhaps the most glaring one is the composition of the restructured Judicial Commission of Pakistan (JCP). By granting the executive a greater number of votes, the amendment flung the door wide open for court-packing. Judicial appointments can now be gifted to favourite lawyers or those cosy with the sitting government (or the actual wielders of power). In doing so, the amendment appears to strategically align the judiciary’s direction with the executive’s preferences. This begs the question: why is the lawyer to justice route even an option?

Even before the amendment, the JCP was flawed. It appeared to champion a system where lawyers, save a few, with the ‘right’ connections — leaders of the bar or any of the chiefs’ favourite lawyers — would appear on the elevation agenda. While it would be ‘contemptuous’ to discuss familial connections or allegations of favouritism in judicial appointments, it is undeniable that questions about transparency and merit persist. This perception has led to a cycle where lawyers of average competence are elevated to the bench, contributing minimally to the evolution of jurisprudence. One case relates to a recently elevated senior lawyer, who last year stood before the Supreme Court and tried to cite an act, unaware that it had been struck down in 2012. Often, such judges are seen to align themselves with a few intellectually robust colleagues, inadvertently creating a culture of conformity rather than independent judicial thought. It’s judicial groupthink at its finest.

If the goal is to recruit judges with an actual command over the law and to eliminate bias, the district and sessions judge route is a better choice. Unlike the arbitrary elevation of lawyers (and/or advocate generals), district and sessions judges come with judicial records: tangible proof of their competence (or lack thereof). These judges are recruited through advertised vacancies, followed by an exam, and an interview. In stark contrast, the current elevation process for lawyers places significant weight on their professional profiles, which does not always correlate with judicial competence.

A senior judge of the Islamabad High Court had, some years ago, described a high court judgeship as ‘on-the-job training’, an observation that reflects the reality of many judges assuming office with limited prior judicial experience. There are exceptions, like the recently elevated Azam Khan, Tasneem Sultana, and Khalid Shahwani, all of whom rose from the district and sessions courts, but these are few.

Why is the lawyer to justice route even an option?

Presently, once elevated, the initial appointment is as an additional judge, after which confirmation as a justice often follows. In practice, navigating this process is seen as being influenced by relationships within the judiciary, with strategic alliances playing a role in career longevity. Once confirmed, justices often enjoy significant autonomy, which can insulate them from constructive criticism or calls for accountability (conversely, political missteps or personal conflicts can result in shoddy references in the Supreme Judicial Council). Although the new JCP rules are a step towards reform, the entrenched culture of judicial camaraderie remains a formidable barrier. Unless the new rules actually lead to someone being removed for being a mediocre judge, they can’t really be relied upon.

Compare this to district and sessions judges who can get trainings and even upskill. This ensures continuous development which can be effectively used to prepare them for the complexities of higher judicial roles. Elevating judges from this pool would compel aspiring high court judges to commit to a full-time ju­­dicial career, en­­su­ring a bench popu­­-lated by better-educated, more dedi­­ca-ted, and genuinely talented individuals.

If the judiciary, and bar councils and associations are serious about reducing executive interference and fixing the judicial appointment process, they should abandon the lawyer to justice route altogether. The district and session judge to additional judge path should be the norm, not the exception. Elevating judges from the district and sessions courts nearly guarantees a pool of candidates with proven judicial records, assessed on the basis of merit rather than connections. Such a shift would also raise the bar for district and sessions judge recruitment: harder exams, stricter standards, and a focus on quality over quantity.

The current system is riddled with favouritism, biases, and a glaring lack of accountability. Tweaking the composition of the JCP won’t solve this. The only real solution lies in adopting a transparent, structured, and meritocratic approach — one that prioritises competence and independence over political convenience. Anything less is just lipstick on a deeply flawed system.

The writer is a lawyer.

Published in Dawn, March 2nd, 2025