Pakistan’s restored judiciary is obsessed about preserving its independence, but unable to appreciate the demands made on an independent judiciary. The most vital sign of independence in any judiciary is individual reasoning and the autonomy of every judge.
This is apparent neither from important court rulings on complex legal propositions nor from the collective demand made by the Supreme Court (SC) judges regarding the appointment of their peers as ad hoc judges.
Simply grabbing more and more authority does not enhance independence. It only makes the judiciary controversial and partisan. Two recent judgments of the SC, ousting the constitutional powers of the Parliamentary Committee (PC) from decision-making while appointing judges to the superior courts and suggesting that the chief justice of Pakistan be consulted while appointing a chairman of the National Accountability Bureau (NAB) indicates that the SC wishes to assume the role of legislating and in running the affairs of the state.
The NAB case argues that in the past, the institution was politicised and used for hounding opponents and is now being misused by the sitting government. Both observations are correct, but past harassment by NAB should have been checked by the SC itself — its failure to do so politicised accountability.
Fortunately, the SC is now active in ensuring that proper consultation is held between the government and the opposition. To this extent the NAB ruling should be well received.
However, to insist that the chief justice be considered as a consultant is misconceived. The law does not provide for it and more importantly, if a NAB chairman appointed by the chief justice acts arbitrarily, the victim will have little faith in being protected and the chief justice’s role will be rendered controversial.
Worse still, if the chief justice and the NAB chairman together begin to harbour prejudices against some people, the victim’s goose will be cooked.
A counter argument is that the restored judiciary can do no wrong. The same logic was used for politicians who were battered by the military. Unfortunately, politicians repeated their mistakes. Faith in an institution comes from years of consistency, rather than spells of reformation.
The judgment declares the appointment of Justice Deedar Shah as illegal and yet debars him from being appointed for another term. The NAB judgment praises Justice Deedar but declares his appointment illegal due to lack of meaningful consultation.
At the same time, the Court rules that even if the illegality is removed, Justice Deedar could not be reappointed as his ‘illegal’ few months in office amounted to one term undergone and the extension of a term is not permissible under the law.
Ironically, the judgment is full of paragraphs of remorse for having to adjudicate on a matter concerning a former peer — pain that is often undertaken by this judiciary, and, as usual, Justice Deedar was not spared.
Debates on the appointment of judges to the superior courts have dominated the discourse in the bars. Woefully, the bars lost the opportunity to present a consensus formula for the consideration of parliament. Not a single bar association sent any recommendation to the Raza Rabbani committee.
Earlier, the methodology suggested by the Pakistan Bar Council was a formula closer to that enacted by the 19th Amendment rather than the principles laid down under the Al-Jehad judgment. More generally, the bar abhors appointments made by the executive but was also unhappy when solely judges appointed judges.
The 19th Amendment model may be far from perfect but was unanimously passed by an elected parliament and does diversify decision-making. It rightly allows only judges to initiate names for elevation and reserved the right to blackball anyone erroneously recommended. This oversight role of the PC has now been struck down by the SC in Munir Hussain Bhatti’s case.
The Judicial Commission (JC) under the rules it framed allows only the chief justice of Pakistan to propose names — meetings of the JC cannot be held without him. The minutes of the JC are confidential and not distributed to its members. They are not even confirmed at the next meeting. As such, the reasons behind the conclusions reached by the JC are only known to the members themselves.
The SC judgment has virtually reduced the PC to a rubber stamp. In addition, the ruling has decided pending petitions challenging the 18th and the 19th Amendments that are sub judice before a larger bench of the apex court. One of the judges to this decision in fact dissented with his brother judge on this aspect of the judgment.
The entire judgment revolves around upholding the independence of the judiciary, which is pivotal to the constitution and democracy. There can be no caveat for upholding such noble principles. Sadly, this has too often been subverted by the courts themselves, starting with the reference by the Governor General and, hopefully, ending with Iqbal Tikka.
The SC judgment presupposes that if appointments to the superior courts were not left solely in the hands of the judiciary, their independence would suffer. There are several models for appointing judges and in a number of jurisdictions decision-making also includes commissions, legislatures and members of the executive. The US, the UK, Norway, Bangladesh and Malaysia are only a few examples. The judiciaries of these countries are as independent as those in any other.
Had the PC insisted that substandard candidates be elevated, the SC would have a sound reason for annoyance. However, in the present case, the PC had merely dropped six names that were not considered worthy of confirmation by the JC itself and had unflattering remarks against them by the chief justices of their respective high courts.
Eventually, they were recommended for extension and this decision itself raises doubts on the process adopted by the JC, rather than the decision made by the PC, which took the observations of the chief justices of the high courts in all seriousness.
Apart from the chief justice of the Sindh High Court, no other member of the JC belongs to Sindh and would have scant knowledge of the competence of the additional judges. Secondly, the remarks of the chief justices of the high courts were not limited to legal competence alone.
The SC judgment does not reproduce the comments of the respective chief justices on the six additional judges recommended to be dropped, but simply argues that the PC had no business to reopen a discussion held by the JC regarding the legal competence of those whose tenure they extend
The performance of the commission as well as the committee must constantly be watched by bar associations. So far, their performance raises concerns.
Initially, the PC simply went along with the JC. Perhaps it recognised that a slight disagreement could cause a judiciary that believes it can do no wrong to flare up. For example, the PC confirmed very few additional judges but was hasty in confirming Justice (retd) Abdul Aziz Kundi, who after a few weeks retired with a handsome pension of Rs 370,000 per month for life. What was special about this particular individual to earn a lifelong pension after a few weeks of service?
The comments were produced in court. In one case, the chief justice of the Sindh High Court wrote that “the conduct, attitude and behaviour” of the judge under consideration were not qualities ingrained in a judge and therefore senior judges did not approve or recommend his extension. For another, he wrote that the conduct and attitude was unbecoming of a judge.
The chief justice of the Lahore High Court had similar comments. In fact, in one case he wrote that the candidate for confirmation was “not inaccessible and indulges in loose talk”. In another he described the judge as a slow worker, indecisive yet opinionated. In yet another he said the person was a “novice in main legal stream” and required commitment and dedication. He added that the candidate had limited knowledge of the laws. He described yet another candidate, Yawar Ali, as a slow worker, status-conscious, moving in ultra-modern circles and with indifferent behaviour towards the public. These are not traits that can be altered within a few months of training, nor can they be ignored.
Additional judges (who are not confirmed) are kept on extension. Their numbers are overwhelming. For example, only one out of five judges of the Balochistan High Court is confirmed. Out of 28 judges of the Lahore High Court, four permanent judges are made dysfunctional, four others are confirmed and the rest are working on extension.
In Peshawar, three confirmed judges are working while one is dysfunctional and six judges are on extension.
Sindh does not fare any better. Out of 18 judges only five are confirmed but one is dysfunctional.
Confirmation of a judge is central to the independence of the judiciary. Yet the JC and the PC continue to extend the tenure of non-confirmation rather than spare the institution of those who are unfit to sit on the bench and grant worthy judges their right to confirmation.
The present chief justice of Pakistan may well be trusted with every decision he makes. However, constitutional amendments are not made around a single individual but to suit all situations. A minority of non-judges in the JC cannot be expected to check judicial nepotism, especially as they too are part and parcel of the legal community and would hesitate to be on the wrong side of their lordships.
The role of the PC must remain measured but rooting it out would be reverting to Al-Jehad, which was often bypassed by the judiciary itself and gave the judiciary unbridled powers over appointments of their peers. The SC judgment has asked that the six controversial additional judges be restored. It is obvious to anyone — sane or insane — that these judges were behind the filing of petitions for their restoration. Such over-keenness should disqualify anyone from elevation. Despite the comments made against them, which are public knowledge, they remain eager to be elevated.
This begs the question of whether the elevation of such persons will indeed add or detract from the very principles of the independence of the judiciary so eloquently written about in our judgments. All one can say is, three cheers for the independence of the judiciary and may our lordships live long enough to see what they sow.
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