Thursday, March 28, 2024

Judicial appointments and low qualifications

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Let me first state that, in most cases, I will not put myself in a debate that has been overwhelmed by the views of Salman Raja; Faisal Nakvi; and Salah Ding Ahmed. However, seeing how the controversy revolves around the merit totem, I hope that the relative lack of experience will not disqualify this brief dedication—most of which only consider existing perspectives from different perspectives.

Feisal Naqvi correctly simplified the debate to the following two basic propositions: “Ability is not [necessarily] Same as qualifications”, and “only the most capable judges can enter the Supreme Court of Pakistan, which is very important”.

None of the three participants in this debate seemed to disagree with these two proposals. Everyone agrees that the ancestors must go; differences are a matter of time. Salman Raja and Feisal Naqvi argued that there are no more positions. Salahuddin Ahmed thinks this is the worst option, and we have come up with a better option.

Let’s study it. If qualifications are a lazy, unimaginative process that makes deviation from mediocrity become accidental, then why accept it as a temporary measure? If the ultimate goal is merit, then let us stick to this goal for the time being. Logically speaking, if the advantages of qualifications are identified more frequently than the alternatives available, you will only choose the advantages of qualifications. But it is difficult to see what is going on.

Suppose you have five candidates-all selected at the same time, but born in different months. Although this would make their relative “qualities” purely accidental, suppose A is the best choice. Under a system determined by “seniority”, A will only select one out of every five times. In other words, there is only a one-fifth chance that A’s time in the Supreme Court can be maximized.

The current alternative: selected by the Judicial Committee after consideration. Suppose, first, that the Judicial Committee holds a meeting and does nothing but roll the dice. This is already an equally successful system. If the only function of JC is to identify anyone who is less capable than the most capable person, eliminate them, and then roll the dice to determine the next person selected, then as a system, its success rate has increased by 25%.

But let us not look at this issue from a “logical” point of view, but from an “experiential” point of view. Experience has shown that sometimes, JC may deliberately weed out the most suitable person for the job, rather than weed out the worst person. In this case, seniority is likely to be a better system: a fifth is better than nothing. However, considering that our Supreme Court has 17 members, even if this is a 13 heights that are completely “designed” to the court, and only 4 are well-intentioned efforts to manage to find the right candidate, this is still a superior system. , By seniority.

Much of the temptation to choose qualifications is the product of looking at the problem from the wrong perspective. The right judge can be chosen by the wrong system, and the wrong judge can also be chosen by the right system. This is why either party can cite the judge’s example to support its argument. The key is to choose a system that can choose the right judgment more frequently than other choices.

However, it should be clear that choosing forests instead of odd trees does not mean that individual cases are completely ignored. The point is that when the superior system produces inferior results, the goal must be to improve the same system, not to revert to the inferior system.

This brings us to the second point of divergence. Except for the so-called short-term value of seniority, everyone agrees that a performance-based system is superior. It is not yet clear what such a system will look like. Salahuddin Ahmed believes that what we need is a system based on “objective standards.”

Eric Posner of the University of Chicago and Stephen Choi of New York University and others have also made similar attempts-they even proposed the same “productivity” and quality of opinions as two of their three criteria. I will not repeat the broad challenges of this idea, but broadly: not only are the standards controversial and difficult to actually measure even with agents, but there are several components that are self-contradictory.

But people don’t have to use absolute terms to describe all this like Feisal Naqvi did. Just because a system cannot be completely objective does not mean that it cannot be more objective. And, in any case, objectivity is only one way to the unique but interconnected goal that Salman Raja has identified: credibility. In a system based on moral legitimacy, if this choice is not based on trust, what are the benefits of a mechanism for selecting suitable candidates?

But despite Salman Raja’s opinion, “[c]The problem is redness rather than lack of rules”, which seems to be an unnecessary binary file. Rules mean that even if a poor candidate is selected, the candidate will still be closer to the ideal candidate. Although the rules may be affected Contempt, but these deviations are at least visible. The extent may be controversial, but the rules will directly increase credibility.

Consider JC’s current deliberation. First of all, if there are any inaccuracies in this report, it is important to remember that the reason we must rely on it is that JC has not disclosed all of them yet. If it is believed that publicity will degrade judges in the eyes of the public, then the only difference in doing so is that the public will limit countless potential causes to actual ones. Compared with the confirmation hearing of a US judge, this will be a breeze.

But if we accept these reports as they are, it is obvious that several objective criteria have actually been discussed-such as the number of judgments and the disposal rate. These seem to have taken a back seat in terms of “temperament”-in the case of Judge Abbas, this seems to have been weakened by an incident.

One solution might be to suggest a formula that considers both objective and subjective components. But even this formula is applicable to this kind of manipulation, in which the objective component only provides a kind of dishonesty credibility. This brings us back to the rules. One of the biggest challenges to credibility is still that judges operate in a completely unbounded space-or what everyone calls “unstructured discretion.” If the objective criteria are not regarded as part of the formula, but as a threshold, this will limit the subjective discussion of the objective boundary.

Consider some questions. If qualifications do not restrict appointments, then why don’t they consider people below the fifth? How far can one person 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 is one higher than Justice Mazar? All of these can be solved by appropriate rules. The youngest, or the judgment of the report, or the disposal rate; All relevant standards of each candidate are required to be discussed, and these standards should be made public.

The erosion of credibility continues. Consider now the decision to appoint the Chief Justice of SHC as ad hoc judge. If the primary goal is merit, then why was Justice Abasi (the obvious runner-up) not promoted to judge ad hoc? If ad hoc judges are equal members of the bench, why promote someone’s status without adequately reporting judgments? If qualifications are just an agreement that can be discarded, then why respect provincial quotas? A vacancy that can be said to still exist, and one appeared in less than a week, what about Al-Jehad? And that’s all. The House of Lords (and the House of Lords) prohibit the committee-based on this opaque reasoning-from deciding to promote a lawyer directly to the Supreme Court (according to the Constitution, a lawyer does not even have to practice in the Supreme Court at all).

As Faisal Naqvi pointed out, the inevitable fact is that, in the end, we need to trust someone or something at some point. That thing cannot be an opportunity. But if it is a judicial committee, this trust cannot be taken for granted. Obtaining it requires a lot of work.

The author is a lawyer.He tweeted @brainmasalaar and he can be reached by the following methods [email protected]

This article originally appeared in the Daily News on August 12, 2021.Can visit here.


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