Not very long ago, when illegitimate rule of General Musharraf was strengthening its grip on power, the sacred Constitution of Pakistan was being desecrated and mutilated by the military regime. When judiciary, through PCO judges, chose to become a tool in the hands of military regime, the friction with lawyers was a natural outcome. The brewing tension between PCO judges and vocal lawyer became a common spectacle during the course of routine proceedings. In one of many such instances, an honorable judge, once observed on sudden load-shedding: “It has become very dark”. On this a senior lawyer Mr. A. K. Dogar at the bar mused: “You are right sir, it has become pitch dark”.

That double-extender exchange in the court rooms of Lahore High Court was signaling the imminent crises, which the whole judiciary was to go through in the coming days. Without going into the details of what ensued thereafter, the restoration of judges put a great emphasis on reforms in judiciary. Hopes of a common man soared and slogan of reforms roared everywhere, with extensive coverage in the headlines of newspapers.

After five years of reforms, the success of whole process can be gauged by the discussion in a ceremony of Supreme Court Bar Association in which judges of Supreme Court also expressed their views. The crux of the discussion can be summarized into two points as reported in media. One, the recruitment of judges in High Courts should be transparent and, two, the confidence of public in the judiciary needs to be restored.

There is no doubt these two issues have become big challenges, first being the cause and the second being the effect. How can the confidence of a common man be restored at a time when Former Chief Justice of Pakistan Justice Jawad S Khawaja, in his farewell speech, confessed that he had seen shadows of fear in the court rooms. To me, there is only one way to restore the public confidence in the judiciary and that is by merit-based decisions; and there is only one way to ensure that decisions are made on merit and merit alone, which is by recruiting judges of higher courts on merit.

The recruitment of judges in High Courts, who ultimately are elevated in Supreme Court, is attracting a lot of criticism. One point is that the Judicial Commission, composed mainly of judges, has converted the Parliamentary Commission into a mere rubber stamp. Supreme Court Bar Association has written a letter to the Parliamentary Commission to show its support to it on recruitment issue. Similarly, Lahore High Court Bar Association through a speech written for Bilawal Bhutto in Lahore High Court Bar has demanded more transparency on recruitment of judges. By the way, Bilawal’s love for merit is understandable as his own appointment as Chairman of PPP was made by way of a dubious “will”, a very “meritorious” way. Not only this, the track record of the PPP is more than a guide on meritorious appointments in the judiciary. A joke says it all according to which a judge appointed by an earlier PPP government came to Lahore and asked someone where is Lahore High Court? In the same way, the “merit” of judges’ appointment in Islamabad High Court by the PPP regime is also well known. And that does not mean that PMLN is any better.

Real problem that underlies this unpleasant situation is that everyone has his own “merit”; to tell the truth everyone declares his personal interests to be the “merit”.

Three interest groups are active in securing judicial appointments in High Courts. First are the top incumbent judges who have already taken all the powers in their hands through Judicial Commission. Secondly, there are politicians who, in the past, have been getting their own buddies in and are now advocating more powers for Parliamentary Commission. Thirdly, there are certain lawyers groups that, through their clout in Bar Associations and Bar Councils, want to monopolize the recruitments.

If we have a look at the past judicial appointments, we cannot miss the pattern. Politicians have been bent on loyalty or their personal lawyers. On the other hand, Judges and lawyers active in bar politics too had been ensuring their share by pushing their relatives; juniors or close confidants form certain chambers through. That’s no merit.

Real merit is competition. In bureaucracy, all core appointments are made through very tough competitive examinations held by Public Service Commissions. In the same way those wanting to join legislature have to pass through competitive process through elections.

What’s the harm in getting candidates shortlisted for elevation in High Courts through Federal Public Service Commission before the concerned committees start deliberations on finalizing the names? Or why not to elevate High Court judges from amongst the directly recruited Additional District and Session Judges through competition? The second method will be even more productive for it will ensure that High Court judges have the experience of working in subordinate judiciary before becoming judges of appellate authority in High Courts. In the existing system, majority of elevated judges have little to no experience of working in civil and district courts, the courts of first instance for majority of cases, which has its own pitfalls.

If judicial appointments are somehow made on true merit in future, it can significantly improve independence and integrity of higher judiciary as a whole. Judges elevated on the basis of hard work and competence through a credible competitive process would definitely be less amenable to the “shadows of fear” which have been reported by Justice Khawaja. But will that happen? It would be very difficult, let me admit, as a truly meritorious system of judicial appointments does not suit the interest groups currently controlling the judiciary.